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Broadcasting Services Amendment Bill 2000

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1998-99

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT BILL (No. 4) 1999

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, Information

Technology and the Arts, Senator the Hon Richard Alston)



 

BROADCASTING SERVICES AMENDMENT BILL (No. 4) 1999

 

OUTLINE

 

The Broadcasting Services Amendment Bill (No. 4) 1999 (the Bill) makes amendments to the Broadcasting Services Act 1992 (BSA), the Radiocommunications Act 1992 (RA) and a minor amendment to the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act). 

 

The Bill contains a new scheme for the regulation of international broadcasting services that are transmitted from Australia.  The scheme is being introduced because there is currently no regulatory regime in relation to international broadcasting from Australia.  The Bill enables the Minister for Foreign Affairs to determine whether an international broadcasting service is likely to be contrary to the national interest.  In determining this, the Minister for Foreign Affairs will have regard in particular to the likely effect of the service on Australia’s international relations.

 

The amendments to the BSA establish a scheme for the regulation of international broadcasting and make the necessary consequential amendments to the BSA.   Proposed new Part 8B of the BSA requires an Australian company who wishes to provide an international broadcasting service to apply to the ABA for an international broadcasting licence.  If the ABA verifies the applicant's corporate status and does not find the applicant to be unsuitable, the ABA must refer the application to the Minister for Foreign Affairs, who will make a national interest assessment as to whether the proposed international broadcasting service is likely to be contrary to the national interest.

 

The Minister for Foreign Affairs may direct the ABA not to allocate a licence to an applicant if, in the opinion of the Minister for Foreign Affairs, the proposed service is likely to be contrary to the national interest.  Alternatively, if he or she has no objection to the allocation of the licence as a result of the national interest assessment, the Minister for Foreign Affairs must direct the ABA to allocate the licence.

 

Division 3 of new Part 8B sets out the licence conditions for international broadcasting licences.  These conditions all deal with keeping records of broadcasts, and providing such records to the ABA as requested.

 

Division 4 of new Part 8B includes the prohibition on providing an international broadcasting service without a licence, and provides for the ABA to issue a notice to a person who is providing an unlicensed international broadcasting service directing the person to cease to provide the service.  Division 4 also contains an offence for breach of conditions of an international broadcasting licence, and empowers the ABA to cancel an international broadcasting licence if an international broadcasting licensee has not commenced to provide a service 2 years after the licence was allocated.  In addition, the Minister for Foreign Affairs may, if he or she is of the opinion that a service is contrary to the national interest, direct the ABA to do one of the following things: give a formal warning to the licensee, suspend the licence, or cancel the licence.

 

Division 5 of new Part 8B provides for the ABA to assist the Minister for Foreign Affairs by preparing a report about whether a specified international broadcasting service complies with the international broadcasting guidelines that will be developed by the ABA, and by obtaining records of broadcasts from an international broadcasting licensee.

 

The Bill also makes a number of amendments to the Radiocommunications Act 1992 (RA).  These amendments ensure that only persons who have an international broadcasting licence allocated by the ABA under the BSA may be issued with a transmitter licence authorising operation of a transmitter for transmitting an international broadcasting service by the Australian Communications Authority (ACA).

 

The amendments to the RA also require the ACA to cancel a transmitter licence that authorises use of a transmitter to transmit an international broadcasting service where each international broadcasting licence that authorised the provision of an international broadcasting service has been cancelled by the ABA or surrendered to the ABA.  

 

The Bill also contains a minor amendment to the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) so that decisions of the Minister for Foreign Affairs in relation to the proposed new international broadcasting scheme are not subject to the requirement in the AD(JR) Act to provide a statement of reasons. 

 

 

FINANCIAL IMPACT STATEMENT

 

A person who makes an application to the ABA for an international broadcasting licence will be required to pay a fee to the ABA.  The fee will be determined by the ABA.  Under section 207 of the BSA, the fee must be calculated on a cost-recovery basis.  A person who applies to the ACA for a licence to operate a radiocommunications transmitter to transmit an international broadcasting service will be required to pay an application fee determined by the ACA.  Under section 53 of the Australian Communications Authority Act 1997, the fee must be calculated on a cost-recovery basis.  In addition, a  radiocommunications transmitter licence tax is required to be paid annually.  The amount of this tax is determined by the ACA under the Radiocommunications (Transmitter Licence Tax) Act 1983.  

 

 

ABBREVIATIONS

 

The following abbreviations are used in this Explanatory Memorandum.

 

ABA:                                      the Australian Broadcasting Authority

 

ACA:                                      the Australian Communications Authority

 

AD(JR) Act:                           Administrative Decisions (Judicial Review) Act 1977

 

AIA:                                        Acts Interpretation Act 1901

 

BSA:                                       Broadcasting Services Act 1992

 

RA:                                         Radiocommunications Act 1992

 

 

 

REGULATION IMPACT STATEMENT

 

The Office of Regulation Review did not require a Regulation Impact Statement in relation to the measures contained in the Bill.



 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides for the Act to be cited as the Broadcasting Services Amendment Act (No.4) 1999 .

 

Clause 2 - Commencement

 

Clause 2 provides for the Act to commence on the day on which it receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule is amended as set out in applicable items in the Schedule.

 

Schedule 1 - International Broadcasting Services

 

Part 1 - Amendments

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 1 - Proposed amendment of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 

 

Item 1 adds a new paragraph (zc) to the end of Schedule 2 of the AD(JR) Act.  Schedule 2 of the AD(JR) Act sets out administrative decisions in Commonwealth legislation that are not subject to the requirement in section 13 of the Act that a decision maker provide a statement of reasons to a person who requests a statement of reasons under the AD(JR) Act.

 

The item has the effect that decisions of the Minister for Foreign Affairs under proposed new Part 8B of the BSA, which deals with international broadcasting services, are not decisions in relation to which the Minister for Foreign Affairs is required to provide a statement of reasons.

 

Under proposed new Part 8B of the BSA, the Minister for Foreign Affairs may make the following decisions:

(a)                 that he or she is of the opinion that an application for an international broadcasting licence should be refused because the proposed service is likely to be contrary to Australia's national interest;

(b)                that he or she is of the opinion that a formal warning should be given to a licensee of an international broadcasting service because the service is contrary to Australia's national interest;

(c)                 that he or she is of the opinion that a licensed international broadcasting service should be suspended because the service is contrary to Australia's national interest; or

(d)                that he or she is of the opinion that a licensed international broadcasting service should be cancelled because the service is contrary to Australia's national interest.

 

The nature of these decisions is such that exposure of the reasons for the decisions could itself be contrary to Australia's national interest.  For this reason, the Minister for Foreign Affairs is not required to provide a statement of reasons under section 13 of the AD(JR) Act.

 

Broadcasting Services Act 1992

 

Item 2 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new  paragraph 3(1)(ja)

 

Item 2 inserts a new paragraph 3(1)(ja) into the BSA so that the objects of the BSA include ensuring that international broadcasting services are not provided contrary to Australia's national interest.

 

Item 3 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new subsection 4(3A)

 

This item inserts a new subsection 4(3A) into the BSA which provides that the regulatory policy set out in section 4 of the BSA does not apply to Part 8B of the BSA which deals with international broadcasting services.

 

Item 4 - Proposed amendment of subsection 6(1) of the Broadcasting Services Act 1992 to insert a definition of international broadcasting guidelines

 

Item 4 inserts a definition of international broadcasting guidelines into section 6, the interpretation section of the BSA.

 

Item 5 - Proposed amendment of subsection 6(1) of the Broadcasting Services Act 1992 to insert a definition of international broadcasting licence

 

  Item 5 inserts a definition of international broadcasting licence into section 6, the interpretation section of the BSA.

 

Item 6 - Proposed amendment of subsection 6(1) of the Broadcasting Services Act 1992 to insert a definition of international broadcasting service

 

Item 6 inserts a definition of international broadcasting service into section 6, the interpretation section of the BSA.  The term international broadcasting service has the meaning given by proposed new section 18A.

 

Item 7 - Proposed amendment of subsection 6(1) of the Broadcasting Services Act 1992 to insert a definition of Minister for Foreign Affairs

 

Item 7 inserts a definition of Minister for Foreign Affairs into section 6, the interpretation section of the BSA.

 

Item 8 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new  paragraph 11(fa)

 

Item 8 inserts into section 11 of the BSA a proposed new paragraph (fa), which provides that international broadcasting services are one of the categories of broadcasting services under the BSA.

 

Item 9 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new section 11A

 

Item 9 inserts into the BSA a proposed new section 11A, Dual categorisation of broadcasting services, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Proposed new section 11A has been included to make it clear that a broadcasting service may be both an international broadcasting service, as defined in proposed new section 18A, and another kind of broadcasting service.  This clarification is necessary as the current categories of broadcasting service in section 11 are intended to be mutually exclusive.  An international broadcasting service may also fall into another category of broadcasting service where it is not only delivered to an audience outside Australia, but is also delivered to persons in Australia.

 

Item 10 - Proposed amendment of subsection 12(1) of the Broadcasting Services Act 1992 

 

Item 10 proposes to amend subsection 12(1) of the BSA to reflect that the method of regulating international broadcasting services is through individual licences which are allocated by the Australian Broadcasting Authority (ABA).  Currently, commercial broadcasting services, community broadcasting services and subscription television broadcasting services all require individual licences allocated by the ABA.  Applicants for individual licences are subject to a suitability test as part of the application process.  In contrast, subscription radio broadcasting and subscription narrowcasting services, and open narrowcasting services are provided under class licences.  A class licence contains conditions with which the person providing a service must comply.  However, a person need not apply for a class licence.  National broadcasting services are a category of broadcasting services, but are not regulated by either individual or class licences.

 



Item 11 - Proposed amendment of section 12 of the Broadcasting Services Act 1992

 

Item 11 adds proposed new subsections 12(3), 12(4), 12(5) and 12(6) to the BSA which deal with licensing of international broadcasting services where the broadcasting service falls into the category of an international broadcasting service and another category of broadcasting service.  Item 11 complements the proposed amendments at items 9 and 12.

 

Proposed new subsection 12(3) provides that an international broadcasting service that also falls into the category of commercial broadcasting services requires both an international broadcasting licence and either a commercial radio broadcasting licence or  a commercial television broadcasting licence.

 

A service would be an international broadcasting service if it is a service of the kind which is described in proposed new section 18A of the BSA.  Proposed new section 18A provides that, subject to certain exceptions, international broadcasting services are services targeted, to a significant extent, to audiences outside Australia, where the means of delivery of the service involves the use of a transmitter in Australia.  A service is a commercial broadcasting service if it is a service of the kind described in section 14 of the Act.  As a result of paragraph 21(b) of the AIA , references to the "general public" in section 14 mean the general public in Australia.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.  

 

Proposed new subsection 12(4) provides that an international broadcasting service that also falls into the category of community broadcasting services requires both an international broadcasting licence and a community broadcasting licence.

 

A service would be an international broadcasting service if it is a service of the kind which is described in proposed new section 18A of the BSA.  Proposed new section 18A provides that, subject to certain exceptions, international broadcasting services are services targeted, to a significant extent, to audiences outside Australia, where the means of delivery of the service involves the use of a transmitter in Australia.  A service is a community broadcasting service if it is a service of the kind described in section 15 of the Act.  Section 15 of the Act provides that, among other things, community broadcasting services are services that provide programs that are made available free to the general public. As a result of paragraph 21(b) of the AIA , references to the "general public" in section 15 mean the general public in Australia.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.  

 

Proposed new subsection 12(5) provides that an international broadcasting service that also falls into the category of subscription television broadcasting services requires both an international broadcasting licence and a subscription television broadcasting licence.   

 

A service would be an international broadcasting service if it is a service of the kind which is described in proposed new section 18A of the BSA.  Proposed new section 18A provides that, subject to certain exceptions, international broadcasting services are services targeted, to a significant extent, to audiences outside Australia, where the means of delivery of the service involves the use of a transmitter in Australia.  A service is a subscription television broadcasting service if it is a television service of the kind described in section 16 of the Act.  Section 16 of the Act provides that, among other things, subscription broadcasting services are services that provide programs that appear intended to appeal to the general public, and are made available to the general public on payment of subscription fees. As a result of paragraph 21(b) of the AIA , references to the "general public" in section 16 mean the general public in Australia.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.

 

Proposed new subsection 12(6) provides that, where an international broadcasting service also falls into the category of broadcasting services covered by subsection 12(2) of the BSA, the service requires an international broadcasting licence and is to be provided under the relevant class licence.  The categories of broadcasting services covered by subsection 12(2) of the BSA are subscription radio broadcasting and subscription narrowcasting services and open narrowcasting services.  These are all services that are provided under class licences.

 

A service would be an international broadcasting service if it is a service of the kind which is described in proposed new section 18A of the BSA.  Proposed new section 18A provides that, subject to certain exceptions, international broadcasting services are services targeted, to a significant extent, to audiences outside Australia, where the means of delivery of the service involves the use of a transmitter in Australia.

 

A service is a subscription radio broadcasting service if it is a radio service of the kind described in section 16 of the Act.  Section 16 of the Act provides that, among other things, subscription broadcasting services are services that provide programs that appear intended to appeal to the general public, and are made available to the general public on payment of subscription fees. As a result of paragraph 21(b) of the AIA , references to the "general public" in section 16 mean the general public in Australia.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.

 

A service is a subscription narrowcasting service or an open narrowcasting service if, among other things, its reception is limited for various reasons.  As a result of paragraph 21(b) of the AIA , references to “reception” in sections 17 and 18 of the BSA means reception in Australia.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.

 

It is intended that no second licence and no class licence requirements apply where an international broadcasting service is received wholly outside Australia.

 

Item 12 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new  section 18A

 

Item 12 inserts a proposed new section 18A into the BSA that sets out when a service would be an international broadcasting service.

 

Proposed new subsection 18A(1) provides that international broadcasting services are services targeted, to a significant extent, to audiences outside Australia, where:

(a)     the means of delivery of the service involves the use of a radiocommunications transmitter in Australia; and

(b)    the services comply with any determinations or clarifications by the ABA under section 19 of the BSA.

 

The proposed provision is intended to ensure that only those broadcasting services that are targeted to an audience outside Australia and transmitted from Australia, and not those services that are fortuitously received outside Australia, will be subject to regulation under the BSA as international broadcasting services.

 

The reference to use of a radiocommunications transmitter in Australia is limited to use of a radiocommunications transmitter in Australia in the normal geographical sense of Australia (as modified by the definition in new subsection 18A(5)).  It does not extend to the use of a radiocommunications transmitter on a satellite which, under regulations made under the RA, is an Australian satellite . While section 16 of the RA provides that the RA applies outside Australia in relation to Australian satellites, the BSA does not extend outside Australia.

 

Proposed new subsection 18A(2) provides that a broadcasting service is not an international broadcasting service if the service is provided either by the Australian Broadcasting Corporation (ABC) in accordance with section 6 of the Australian Broadcasting Corporation Act 1983 or by the Special Broadcasting Service Corporation (SBS) in accordance with section 6 of the Special Broadcasting Corporation Act 1991 ; or is an exempt broadcasting service .   The effect of this proposed new provision is that ABC and SBS Charter services and broadcasting services of the kind set out in proposed new subsection 18A(3) are not international broadcasting services for the purposes of the BSA.

 

Proposed new subsection 18A(3) provides that a broadcasting service is an exempt broadcasting service if all of the following conditions apply:

(a)     the service delivers only programs packaged outside Australia; and

(b)    all relevant programming decisions are made outside Australia; and

(c)     the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re-transmitted to a satellite; and

(d)    the satellite is a means of delivering the service.

 

Proposed new subsection 18A(3) is intended to remove from the regulation of the BSA all satellite pass-through broadcasting services where all of the packaging of programs and all of the programming decisions are made outside Australia.  An example of such a service would be a television service which comprises programs packaged in the United States, where all the programming decisions are made in the United States, that is transmitted to an earth station in Australia by satellite or cable and is immediately re-transmitted to a satellite which delivers the television service to Indonesia.   This exemption is intended to ensure that the amendments do not affect any commercial proposals to make Australia a programming up-link hub for broadcasting services delivered by satellite.

 

Proposed new subsection 18A(4) provides that the references to localities in proposed new section 18A are not intended to affect the application of paragraph 21(b) of the AIA and section 10 of the BSA to a provision of the BSA that deals with a category of broadcasting services other than international broadcasting services.  Paragraph 21(b) of the AIA provides, among other things, that unless the contrary intention appears, references to localities, jurisdictions and other matters and things shall be construed as references to localities, jurisdictions and other matters and things in and of the Commonwealth.  Section 10 of the BSA provides that the BSA extends to all external territories.

 

Proposed new subsection 18A(4) is included to ensure that it is clear that the references to localities outside Australia in proposed new subsection 18A(3) does not displace the general rule of interpretation in paragraph 21(b) of the AIA, or rule in section 10 of the BSA.

 

Proposed new subsection 18A(5) provides that, in section 18A, Australia includes the external territories, and radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992 .   There is a definition of radiocommunications transmitter at subsection 7(2) of that Act.  

 

Item 13 - Proposed amendment of paragraphs 19(1)(a) and (b) of the Broadcasting Services Act 1992

 

Item 13 is a proposed amendment to include references to proposed new section 18A in  paragraphs 19(1)(a) and (b).  The effect of the item is that the ABA will have the power, by notice in the Gazette , to determine additional criteria to those specified in section 18A, or clarify the criteria specified in section 18A, for the purposes of distinguishing between categories of broadcasting services.  Proposed new section 18A sets out the criteria for an international broadcasting service.

 

Item 14 - Proposed amendment of subsection 21(1) of the Broadcasting Services Act 1992

 

Item 14 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Item 15 - Proposed amendment of subsection 21(2) of the Broadcasting Services Act 1992

 

Item 15 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Item 16 - Proposed amendment of subsection 21(4) of the Broadcasting Services Act 1992  

 

Item 16 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Item 17 - Proposed amendment of paragraph 21(5)(a) of the Broadcasting Services Act 1992

 

Item 17 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.  

 

Item 18 - Proposed amendment of paragraph 21(5)(b) of the Broadcasting Services Act 1992

 

Item 18 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Item 19 - Proposed amendment of paragraph 21(5)(b) of the Broadcasting Services Act 1992

 

Item 19 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 



Item 20 - Proposed amendment of subsection 21(6) of the Broadcasting Services Act 1992

 

Item 20 is a minor amendment consequential upon the proposed amendment at item 9, which provides that an international broadcasting service may also fall into another category of broadcasting services.

 

Item 21 - Proposed amendment of the Broadcasting Services Act 1992 to insert new subsections 21(8) and 21(9)

 

This item proposes to add new subsections 21(8) and 21(9) to the BSA.

 

Proposed new subsection 21(8) provides that the ABA must not give an opinion under section 21 that a particular broadcasting service falls into more than one category of broadcasting service unless one of the categories is international broadcasting services. 

 

Proposed new subsection 21(9) provides that a person must not, in an application to the ABA for an opinion as to which category of broadcasting services a broadcasting service falls into, state an opinion that a broadcasting service falls into more than one category of broadcasting services, unless one of the categories is international broadcasting services.   This provision has been included because subsection 21(6) of the Act provides that if the ABA does not give an opinion under section 21 within 45 days, the ABA will be taken to have given the opinion that accords with the applicant’s opinion.

 

Item 22 - Proposed amendment of the Broadcasting Services Act 1992 to insert a new Part 8B before Part 9

 

Item 22 inserts a new Part 8B into the BSA that deals with international broadcasting licences.

 

Part 8B - International broadcasting licences

 

Division 1 - Simplified outline

 

Proposed new section 121F of the Broadcasting Services Act 1992 - Simplified outline

 

Proposed new section 121F sets out a simplified outline of proposed new Part 8B of the BSA.

 

Division 2 - Allocation of international broadcasting licences

 

Proposed new section 121FA of the Broadcasting Services Act 1992 - Application for international broadcasting licence

 

Proposed new section 121FA provides that a person may apply to the ABA for a licence to provide an international broadcasting service (subsection 121FA(1)), and that the application must be in accordance with a form approved in writing by the ABA, and accompanied by the application fee determined in writing by the ABA (subsection 121FA(2)).

 

Proposed new section 121FB of the Broadcasting Services Act 1992 - Corporate status and suitability

 

Proposed new section 121FB sets out the corporate status and suitability requirements that must be satisfied by an applicant for an international broadcasting licence.

 

Proposed new subsection 121FB(1) provides that, if the ABA is satisfied that an applicant for an international broadcasting licence is company that is formed in Australia, and does not decide that the applicant is an unsuitable applicant under proposed new section 121FC, the ABA must refer the application to the Minister for Foreign Affairs and give the Minister a report about whether the proposed international broadcasting service complies with the international broadcasting guidelines.  The international broadcasting guidelines are guidelines that will be developed by the ABA in consultation with the Minister for Foreign Affairs.

 

Proposed new subsection 121FB(2) provides that if the ABA is not satisfied that an applicant for an international broadcasting licence is a company that is formed in Australia, or decides that the applicant is an unsuitable applicant under proposed new section 121FC, the ABA must refuse to allocate an international broadcasting licence to the applicant. 

 

Proposed new subsection 121FB(3) provides that, if under subsection 121FB(2), the ABA refuses to allocate an international broadcasting licence to an applicant, the ABA must give written notice of the refusal to the applicant.

 

The effect of proposed new section 121FB is that there are two preconditions that an applicant for an international broadcasting licence must meet before the application is referred to the Minister for Foreign Affairs for the national interest assessment.  An applicant must be a company formed in Australia and not be an unsuitable applicant under proposed new section 121FC.   If the applicant does not meet these preconditions, the ABA must refuse to allocate the licence and inform the applicant in writing.

 

Consideration of the corporate status and suitability of an applicant for an international broadcasting licence by the ABA is not intended to preclude general corporate status and suitability issues from being considered in the context of Australia’s national interest under proposed new Part 8B of the BSA.

 

Proposed new section 121FC of the Broadcasting Services Act 1992 - Unsuitable applicant

 

Proposed new section 121FC deals with when an applicant is an unsuitable applicant.

 

Proposed new subsection 121FC(1) provides that the ABA may decide that an applicant is an unsuitable applicant if it is satisfied that allowing a particular company to provide an international broadcasting service under an international broadcasting licence would lead to a significant risk of either an offence against the Act or any regulations under the Act, or a breach of the licence conditions.

 

Proposed new subsection 121FC(2) sets out the factors that the ABA is to take into account in deciding whether there exists a significant risk of either an offence against the Act or any regulations under the Act or a breach of the licence conditions.  These factors include factors relevant to the company and persons in a position to control the company.

 

The effect of proposed new section 121FC is that the ABA must form a view as to whether the applicant is an unsuitable applicant, having regard to the factors in proposed new subsection 121FC(2).  These factors are the same factors that the ABA is required to take into account in the application process for commercial, community or subscription television broadcasting licences.

 

Proposed new section 121FD of the Broadcasting Services Act 1992 - Australia's national interest

 

Proposed new section 121FD sets out the role of the Minister for Foreign Affairs in the international broadcasting licence application process.

 

Proposed new subsection 121FD(1) provides that if an application for an international broadcasting licence is referred to the Minister for Foreign Affairs by the ABA under subsection 121FB(1), and the Minister for Foreign Affairs is of the opinion that the proposed international broadcasting service is likely to be contrary to Australia's national interest, the Minister for Foreign Affairs may, by written notice to the ABA, direct the ABA not to allocate an international broadcasting licence to the applicant.   The effect of the provision is that the ABA must refuse to allocate an  international broadcasting licence to a person if, in the opinion of the Minister for Foreign Affairs, the proposed broadcasting service may be contrary to the national interest.

 

Proposed new subsection 121FD(2) provides that if an application for an international broadcasting licence is referred to the Minister for Foreign Affairs under proposed new subsection 121FB(1), and the Minister for Foreign Affairs is not of the opinion that the international broadcasting service concerned is likely to be contrary to the national interest, the Minister for Foreign Affairs must, by written notice to the ABA, inform the ABA that he or she has no objection to the allocation of an international broadcasting licence to the applicant.

 

Proposed new subsection 121FD(3) provides that, for the purposes of proposed new section 121FD, in determining whether a proposed international broadcasting service is likely to be contrary to Australia's national interest, the Minister for Foreign Affairs must have regard to the likely effect of the proposed service on Australia's international relations.

 

Proposed new subsection 121FD(4) provides that, for the purposes of proposed new section 121FD, in determining whether a proposed international broadcasting service is likely to be contrary to Australia's national interest, the Minister for Foreign Affairs may have regard to a report given by the ABA under proposed new subsection 121FB(1).

 

The effect of proposed new subsection 121FD(4) is that the Minister for Foreign Affairs may have regard to the ABA report about whether the proposed international broadcasting service complies with the international broadcasting guidelines.  The Minister for Foreign Affairs may also have regard to any other material that he or she considers relevant.

 

Proposed new subsection 121FD(5) requires the Minister for Foreign Affairs to make reasonable efforts to, within 60 days of a referral from the ABA of an application for an international broadcasting licence, either direct the ABA not to allocate the licence because he or she is of the opinion that the proposed international broadcasting service is likely to be contrary to the national interest, or inform the ABA that he or she does not object to the allocation of an international broadcasting licence to the applicant. 

 

Proposed new subsection 121FD(6) provides that, if the Minister for Foreign Affairs directs the ABA not to allocate an international broadcasting licence to an applicant, the ABA is required to give written notice of the direction to the applicant.

 

Proposed new section 121FE of the Broadcasting Services Act 1992 - Allocation of licence

 

Proposed new section 121FE provides that if the Minister for Foreign Affairs informs the ABA under subsection 121FD(2) of the BSA that he or she has no objection to the allocation of an international broadcasting licence to an applicant, the ABA must allocate the licence to the applicant.

 

The effect of proposed new section 121FE is that the ABA has no discretion in relation to the allocation of an international broadcasting licence once the Minister for Foreign Affairs has informed the ABA that he or she has no objection on national interest grounds to the allocation of the licence.

 

Division 3 - Obligations of international broadcasting licensees

 

Proposed new section 121FF of the Broadcasting Services Act 1992 - Conditions of international broadcasting licences

 

Proposed new section 121FF sets out the conditions to which each international broadcasting licence is subject.  A licensee of an international broadcasting licence is subject to the following conditions:

(a)     to make a record of programs broadcast on the service in a form approved by the ABA;

(b)    to retain this record of broadcast for 90 days after the broadcast; and

(c)     to make this record available to the ABA on request and free of charge.

 

The purpose of the record keeping licence conditions is to ensure that the ABA will receive from licensees records of broadcasts if the ABA requests these records of broadcasts on behalf of the Minister for Foreign Affairs under proposed new section 121FN. 

 

Division 4 - Remedies

 

Proposed new section 121FG of the Broadcasting Services Act 1992 - Prohibition on providing an international broadcasting service without a licence

 

Proposed new subsection 121FG(1) provides that a person is guilty of an offence if the person intentionally provides an international broadcasting service and does not have a licence to provide that service and is reckless as to that fact.  The penalty for this offence is 20,000 penalty units.  Currently a penalty unit is $110, so the current penalty is $2,200,000.  Under subsection 4B(3) of the Crimes Act 1914, if a body corporate is convicted of an offence against a Commonwealth law, the Court may impose a penalty of up to 5 times the amount of the maximum penalty that could be imposed on a natural person.

 

Proposed new subsection 121FG(2) provides that a person who contravenes subsection 121FG(1) is guilty of a separate offence in respect of each day during which the contravention continues. Section 213 of the BSA provides that the maximum penalty for each day that an offence that is a continuing offence continues is 10% of the maximum penalty for the principal offence.

 

Proposed new section 121FH of the Broadcasting Services Act 1992 - Notice for providing an international broadcasting service without a licence

 

Proposed new subsection 121FH(1) provides for the ABA to issue a notice to a person   who the ABA is satisfied is providing an international broadcasting service without a licence for that service, directing that person to cease providing the service.

 

Proposed new subsection 121FH(2) provides that a person is guilty of an offence if the person has been issued with a notice by the ABA under subsection 121FH(1) and the person intentionally fails to comply with the notice.  The penalty for this offence is  20,000 penalty units.  Currently a penalty unit is $110, so the current penalty is $2,200,000.  Under subsection 4B(3) of the Crimes Act 1914, if a body corporate is convicted of an offence against a Commonwealth law, the Court may impose a penalty of up to 5 times the amount of the maximum penalty that could be imposed on a natural person.

 

 Proposed new subsection 121FH(3) provides that a person who contravenes subsection 121FH(2) is guilty of a separate offence in respect of each day during which the contravention continues. Section 213 of the BSA provides that the maximum penalty for each day that an offence that is a continuing offence continues is 10% of the maximum penalty for the principal offence.

 

Proposed new section 121FJ of the Broadcasting Services Act 1992 - Offence for breach of conditions of international broadcasting licence

 

Proposed new section 121FJ provides that a person is guilty of an offence if the person is an international broadcasting licensee, and the person intentionally breaches a condition of the licence.  The penalty is 2,000 penalty units, which is currently $220,000.

 

Subsection 4B(3) of the Crimes Act 1914 would not apply to this penalty as the offence only applies to licensees and applicants for licences must be a company.

 

Proposed new section 121FK of the Broadcasting Services Act 1992 - Cancellation of licence if service does not commence within 2 years

 

Proposed new section 121FK provides for cancellation of an international broadcasting licence by the ABA if the licensee does not start providing the service within 2 years.   Proposed new section 121FK also requires the ABA to give written notice of the intention to cancel a licence, and to notify the ACA that an international broadcasting licence has been cancelled.

 

Proposed new subsection 121FK(1) empowers the ABA to cancel a licence if the person who was allocated the licence has not commenced to provide the international broadcasting service within 2 years of allocation of the licence.  This provision is intended to ensure that a national interest assessment, which is part of the licence allocation process for an international broadcasting licence, will be reasonably current when the proposed service commences.  As the ABA will have the discretion to cancel the licence, and is required to seek representations from a licensee if the ABA is proposing to cancel the licence, the ABA will be obliged to take any matters raised by the licensee into account before cancelling the licence under this proposed new provision.   

 

Proposed new subsection 121FK(2) requires the ABA to give the licensee notice of its intention to cancel a licence under subsection 121FK(1), and to provide a licensee with a reasonable opportunity to make representations in relation to the proposed cancellation.  This is intended to ensure that the ABA takes all relevant issues into account in any decision to cancel a licence under proposed new section 121FK.

 

Proposed new subsection 121FK(3) provides that, if the ABA cancels a licence under subsection 121FK(1), the ABA must notify the cancellation to the ACA.  This provision is relevant to the proposed amendments in the Bill to the Radiocommunications Act 1992 (RA) which include that the ABA must cancel a transmitter licence that authorises the operation of a radiocommunications transmitter used to transmit an international broadcasting service, where the international broadcasting licence that authorises the provision of the international broadcasting service has been cancelled or surrendered (see proposed new section 128A of the RA).

 

Proposed new section 121FL of the Broadcasting Services Act 1992 - Formal warning, or cancellation or suspension of licence, where service is contrary to Australia's national interest

 

Proposed new section 121FL provides for formal warning, suspension and cancellation of international broadcasting licences by the ABA, on the direction of the Minister for Foreign Affairs, on national interest grounds.   Proposed new section 121FL provides the Minister for Foreign Affairs with a choice of three enforcement options so that he or she may choose the option that he or she believes is warranted in the circumstances.  The Minister for Foreign Affairs is not, for example, required to direct the ABA to issue a formal warning to an international broadcasting licensee before he or she may direct the ABA to suspend or cancel an international broadcasting licence.

 

Proposed new subsection 121FL(1) provides that, if the Minister for Foreign Affairs is of the opinion that a licensed international broadcasting service is contrary to the national interest, and the Minister for Foreign Affairs directs the ABA to issue a formal warning to the licensee, the ABA must issue the formal warning to the licensee.  

 

Proposed new subsection 121FL(2) provides that, if the ABA issues a formal warning to a licensee under proposed new subsection 121FL(1), the ABA must notify the warning to the ACA.

 

Proposed new subsection 121FL(3) provides that if the Minister for Foreign Affairs is of the opinion that a licensed international broadcasting service is contrary to the national interest, and the Minister for Foreign Affairs directs the ABA to suspend the licence for a period specified in the direction, the ABA must suspend the licence for the period specified in the direction.  If the holder of an international broadcasting licence has been informed by the ABA that its licence has been suspended, and the service continues during that period of suspension, the holder of the licence would be guilty of the offence of providing an international broadcasting service without a licence (proposed new  section 121FG).

 

Proposed new subsection 121FL(4) provides that, if the ABA suspends a licence under  subsection 121FL(3), the ABA must notify the suspension to the ACA.

 

Proposed new subsection 121FL(5) provides that, if the Minister for Foreign Affairs is of the opinion that a licensed international broadcasting service is contrary to the national interest, and the Minister for Foreign Affairs directs the ABA to cancel the licence, the ABA must cancel the licence.

 

Proposed new subsection 121FL(6) provides that, if the Minister for Foreign Affairs proposes to direct the ABA to cancel an international broadcasting licence, he or she must direct the ABA to give the licensee written notice of that intention, and give the licensee a reasonable opportunity to send a submission to the ABA in relation to the proposed direction to cancel the licence, and forward any submission to the Minister for Foreign Affairs.

 

Proposed new subsection 121FL(6) is intended to provide a mechanism to ensure that before the Minister for Foreign Affairs may direct the ABA to cancel an international broadcasting licence on national interest grounds, the holder of the licence will have been given the opportunity to raise any relevant matters that should be taken into account by the Minister for Foreign Affairs before proceeding to direct the ABA to cancel the licence.

 

Proposed new subsection 121FL(7) provides that, if the ABA cancels a licence under subsection 121FL(5), the ABA must notify the cancellation to the ACA.

 

Proposed new subsection 121FL(8) provides that, in determining whether an international broadcasting service is contrary to the national interest for the purposes of section 121FL, the Minister for Foreign Affairs must have regard to the effect of the service on Australia's international relations.

 

In determining whether an international broadcasting service is contrary to the national interest under proposed new subsection 121FL(8) the Minister for Foreign Affairs is not precluded from having regard to the corporate status and continuing suitability of a licensee.

 

Proposed new subsection 121FL (9) provides that, for the purposes of proposed new section 121FL, the Minister for Foreign Affairs may, in determining whether an international broadcasting service is contrary to the national interest, have regard to a report given by the ABA under section 121FM.  Proposed new section 121FM provides that the Minister for Foreign Affairs may direct the ABA to prepare a report about whether a specified international broadcasting service complies with the international broadcasting guidelines.

 

Proposed new subsection 121FL(9) has been included in section 121FL so that it is clear that an ABA report under section 121FM is not the only source of material to which the Minister for Foreign Affairs may have regard when he or she decides whether to direct the ABA to give a formal warning to an international broadcasting licensee, or to suspend or cancel an international broadcasting licence. 

 

Division 5 - ABA to assist the Minister for Foreign Affairs

 

Proposed new section 121FM of the Broadcasting Services Act 1992 - Report about compliance with international broadcasting guidelines

 

Proposed new section 121FM provides that the Minister for Foreign Affairs may direct the ABA to prepare a report about whether a specified international broadcasting service complies with the international broadcasting guidelines.

 

Proposed new section 121FN of the Broadcasting Services Act 1992 - Records of broadcasts

 

Proposed new section 121FN provides that the Minister for Foreign Affairs may direct the ABA to obtain specified records or copies of records of broadcasts from an international broadcasting licensee and give the records or copies to the Minister for Foreign Affairs.

 

The purpose of the provision is to ensure that, if the Minister for Foreign Affairs wishes to review specific broadcasts which he or she is concerned may be contrary to the national interest, he or she may direct the ABA to acquire the relevant records of broadcasts.  The licensee should have these records as keeping records of broadcasts for 90 days and giving the records to the ABA on request are licence conditions to which all international broadcasting licensees are subject as a result of proposed new section 121FF.

 

Division 6 - Miscellaneous

 

Proposed new section 121FP of the Broadcasting Services Act 1992 - International broadcasting guidelines

 

Proposed new subsection 121FP(1) requires the ABA to formulate written guidelines relating to international broadcasting services.  Proposed new subsection 121FP(2) provides that international broadcasting guidelines may deal with matters other than Australia's national interest.

 

Proposed new section 121FQ of the Broadcasting Services Act 1992 - Surrender of international broadcasting licences

 

Proposed new subsection 121FQ(1) provides that an international broadcasting licensee may surrender the licence by giving written notice to the ABA.

 

Proposed new subsection 121FQ(2) provides that the ABA must notify the ACA if a licence is surrendered under subsection 121FQ(1). 

 

Proposed new section 121FR of the Broadcasting Services Act 1992 - Complaints about international broadcasting services 

 

Proposed new section 121FR provides that it is not a function of the ABA to monitor and investigate complaints concerning international broadcasting services.  However, if an international broadcasting service also falls into another category of broadcasting services, proposed new section 121FR does not prevent the ABA from performing its function of monitoring and investigating complaints about the service in the service's capacity as a service that falls into that other category.

 

Item 23 - Proposed amendment of section 204 of the Broadcasting Services Act 1992 (to add a table item before item dealing with refusal to include a code of practice in the Register)

 

Item 23 amends the table in section 204 of the Act so that an appeal to the Administrative Appeals Tribunal is available from a decision of the ABA that a company is an unsuitable applicant for an international broadcasting licence (under proposed new section 121FC) and a decision of the ABA to cancel an international broadcasting licence under proposed new section 121FK).

 

Item 24 - Proposed amendment of subsection 214(1) of the Broadcasting Services Act 1992

 

This item amends subsection 214(1) of the BSA so that subsection 214(1) contains a reference to subsections 121FG(2) and 121FH(3).  Section 214 provides for the procedure in relation to continuing offences under the BSA.  Proposed new subsections 121FG(2) and 121FH(3) provide that the offences in subsection 121FG(1) and 121FH(2) respectively are continuing offences.   

 

Item 25 - Proposed amendment of subclause 1(1) of Schedule 1 of the Broadcasting Services Act 1992

 

Item 25 amends subclause 1(1) of Schedule 1 of the Act to include international broadcasting licences in the list of broadcasting licences.  Schedule 1 is intended to provide a means of finding out who is in a position to exercise control of broadcasting licences, newspapers and companies and a means of tracing company interests.  Subclause 1(1) has been amended to include international broadcasting licences because under proposed new section 121FC, in deciding whether an applicant for an international broadcasting licence is an unsuitable applicant, the ABA is required to take into account the business record of each person who would be in the position to control an international broadcasting licence, and the record in situations requiring trust and candour of each person who would be in the position to control an international broadcasting licence. 

 

Item 26 - Proposed amendment of subclause 4(4) of Schedule 1 of the Broadcasting Services Act 1992 to amend the definition of media company

 

Item 26 amends the definition of media company in subclause 4(4) of Schedule 1 of the BSA so that the definition includes a company that holds an international broadcasting licence.

 



Radiocommunications Act 1992

 

Item 27 - Proposed amendment of section 5 of the Radiocommunications Act 1992 to insert a definition of international broadcasting licence

 

Item 27 inserts a definition of international broadcasting licence into section 5, the interpretation section of the RA.

 

Item 28 - Proposed amendment of section 5 of the Radiocommunications Act 1992 to insert a definition of international broadcasting service

 

Item 28 inserts a definition of international broadcasting service into section 5, the interpretation section of the RA.

 

Item 29 - Proposed amendment of section 100 of the Radiocommunications Act 1992 to insert a new subsection 100(3B)

 

Item 29 inserts proposed new subsection 100(3B) into the RA.

 

Proposed new subsection 100(3B) provides that the ACA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence that authorises provision of that service.

 

Proposed new subsection 100(3B) ensures that a person who wishes to provide an international broadcasting service obtains an international broadcasting licence to authorise provision of the international broadcasting service before they obtain a transmitter licence which authorises the use of a transmitter to transmit the international broadcasting service.  This is intended to ensure that the national interest assessment which must take place before the ABA may allocate an international broadcasting licence to a person has been completed before the ACA is required to consider an application for a transmitter licence to authorise use of a transmitter to transmit an international broadcasting service. 

 

Item 30 - Proposed amendment of subsection 108(2) of the Radiocommunications Act 1992 to insert a new paragraph 108(2)(da)

 

Item 30 inserts a proposed new paragraph 108(2)(da) into the RA that provides that it is a condition of a transmitter licence that the licensee and any person authorised by the licensee under section 114 of the RA, must not operate, or permit operation of, a transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence authorising provision of that service.

 

Breach of the licence condition in proposed new 108(2)(da) is an offence under section 113 of the RA, and is a ground for the ACA to suspend or cancel a licence under Division 6 of Part 3.3 of the RA.  Including the proposed new condition in the RA is intended to discourage the holder of a transmitter licence from transmitting an international broadcasting service in relation to which there is not in force an international broadcasting licence.

 

Item 31 - Proposed amendment of paragraph 118(1)(d) of the Radiocommunications Act 1992

 

Item 31 amends paragraph 118(1)(d) of the RA so that, among the things that a licensee must notify a person authorised to use a transmitter under a transmitter licence, is a notice under proposed new subsection 128B(1) cancelling the licence.

 

Item 32 - Proposed amendment of the Radiocommunications Act 1992 to insert a new heading before section 125

 

Item 32 inserts a new heading "Subdivision A - General Provisions" into Division 6 of Part 3.3 of the RA.  This is necessary because item 34 adds a new Subdivision B at the end of Division 6 of Part 3.3, and the current Division 6 will become Subdivision A. 

 

  Item 33 - Proposed amendment of section 125 of the Radiocommunications Act 1992

 

Item 33 amends section 125 so that all references to "this Division" are references to "this Subdivision".

 

Item 34 - Proposed amendment of the Radiocommunications Act 1992 to insert a new Subdivision at the end of Division 6 of Part 3.3

 

Item 34 adds a new Subdivision B to Division 6 of Part 3.3 which contains the special cancellation rules that apply only in relation to transmitter licences used for the transmission of international broadcasting services.

 

Proposed new section 128A provides that Subdivision B applies to a transmitter licence if the licence authorises the operation of a radiocommunications transmitter for transmitting one or more international broadcasting services, and each international broadcasting licence that authorised the provision of those international broadcasting services has been surrendered or cancelled.  Under the proposed amendments to the BSA in this Bill, the ABA is required to notify the ACA if an international broadcasting licence is surrendered or cancelled. 

 

Proposed new section 128B provides that the ACA must, by written notice to the holder of the transmitter licence, cancel the licence and that the notice must give the reasons for cancelling the licence.   In this case, the reasons for cancelling the licence will be that the ACA has been advised by the ABA that the international broadcasting licence in relation to the international broadcasting service has been surrendered or cancelled.

 

If a transmitter licence that authorises use of a transmitter for transmitting an international broadcasting service also authorises use of a transmitter for another purpose, and that transmitter licence is cancelled by the ACA under proposed new section 128B of the RA, it is intended that the ACA will issue a new transmitter licence in relation to that other purpose.

 

Item 35 - Proposed amendment of paragraph 148(c) of the Radiocommunications Act 1992

 

Item 35 amends paragraph 148(c) so that reference to cancellation of a licence under proposed new 128B is included in the paragraph.   Section 148 of the RA requires the ACA to update the Register of Radiocommunications Licences which the ACA is required to establish and keep under section 143 of the RA.

 

Part 2 - Transitional Provisions

 

Item 36 - Transitional - existing providers of international broadcasting services

 

Item 36 is a transitional provision which will be of relevance to persons who are providing international broadcasting services when the scheme for regulating international broadcasting commences.

 

Subclause (1) of this item provides that the prohibition on providing an international broadcasting service in proposed new sections 121FG and 121FH of the BSA, and the licence condition in proposed new paragraph 108(2)(da) of the RA, do not apply until:

(a)     if the person does not apply for an international broadcasting service within 30 days of the commencement of this item - the end of 30 days after the item commences;

(b)    if the person applies for an international broadcasting licence for the service within 30 days but the licence is not allocated to the person, the time when the person receives notification from the ABA that the licence is refused because the person is not a company or a suitable applicant, or because the Minister for Foreign Affairs is of the opinion that the proposed international broadcasting service is likely to be contrary to the national interest;

(c)     if the person applies for an international broadcasting licence and the licence is allocated to the person - the time when the licence is allocated.

 

Item 36 is intended to ensure that a person who is already providing an international broadcasting service when proposed new Part 8B commences is given adequate time to apply for an international broadcasting licence, during which time the offences of providing an international broadcasting service without a licence, or failing to comply with an ABA direction to cease providing an unlicensed international broadcasting service, do not apply to them.

 

Subclause (2) of item 36 provides that if a person was providing an international broadcasting service before the commencement of item 36, proposed new sections 121FB and 121FD of the BSA, which refer to proposed international broadcasting services, have effect as if the service was a proposed service.