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Broadcasting Services Amendment Bill 2000

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1998 - 1999 - 2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT BILL (No. 4) 1999

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, Information

Technology and the Arts, Senator the Hon Richard Alston)



 

BROADCASTING SERVICES AMENDMENT BILL (No. 4) 1999

 

 

Amendments to be moved on behalf of the Government

 

 

OUTLINE

 

The Broadcasting Services Amendment Bill (No.4) 1999 (the Bill) amends the Broadcasting Services Act 1992 (BSA), the Radiocommunications Act 1992 (RA) and the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) to:

 

·          provide a scheme for the regulation of international broadcasting services that are transmitted from Australia; and

 

·          exempt decisions of the Minister for Foreign Affairs in relation to the proposed new international broadcasting scheme from the requirement in the AD(JR) Act to provide a statement of reasons.

 

After introduction in the House, the Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee.  The Committee made the following three recommendations:

 

·          that the Bill be amended so that the international broadcasting guidelines to be prepared by the Australian Broadcasting Authority (ABA) under proposed new section 121FP be a disallowable instrument;

 

·          that the Bill be amended to require the Minister for Foreign Affairs to report to Parliament reasons for any decision to refuse to allocate an international broadcasting

licence, or to suspend or cancel an international broadcasting licence, where the Minister refused to provide a statement of reasons under the AD(JR) Act; and

 

·          that the Government give consideration to a proposal from an aspirant provider of radiocommunications transmission services for international broadcasting that the Bill be amended so that providers of transmission services could apply for international broadcasting licences on behalf of content providers of international broadcasting services, and deal with the ABA in relation to such international broadcasting licences on behalf of content providers.

 

The proposed amendments to the Bill implement the Committee’s recommendations 1 and 2 and also amend the Bill so that it includes a scheme, the nominated broadcaster declaration scheme, to give effect to recommendation 3.  The nominated broadcaster declaration scheme is intended to allow a person who is a provider of transmission services to broadcasters with the opportunity to apply for international broadcasting licences on behalf of the providers of the content of international broadcasting services, and to deal with the ABA in relation to those licences.

 

The amendments also propose to amend the RA to allow a person who wishes to apply to the ABA to be a nominated broadcaster in relation to an international broadcasting service to be provided by another person, to apply to the Australian Communications Authority (ACA) for a certificate indicating that, if the conditions specified in the certificate are met, the ACA will be disposed to issue the transmitter licence.  These amendments are intended to give a person who wishes to become a nominated broadcaster some confidence that they will obtain the necessary transmitter licences if the application for the international broadcasting licence is successful.  This may assist a transmission provider to obtain support from content providers for becoming a nominated broadcaster.  As the Bill provides that the ACA must not issue a transmitter licence authorising operation of a transmitter for transmitting an international broadcasting service unless there is already in force an international broadcasting licence authorising provision of that service, a transmission provider may not obtain the necessary transmitter licences for transmitting an international broadcasting service in advance of the allocation of the international broadcasting licence in relation to the service under the BSA.

 

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments are not expected to have a significant impact on Commonwealth expenditure or revenue.

 

 



 

NOTES ON AMENDMENTS

 

Amendment (1)

 

This amendment changes the name of proposed Division 1 of Part 8B of the BSA from “Simplified outline” to “Introduction”.  Part 8B of the BSA is the proposed new part of the BSA “International Broadcasting Licences”.

 

Amendment (2)

 

This amendment inserts an outline of the proposed new nominated broadcaster declaration scheme in the simplified outline in the Bill at proposed new section 121F.

 

Amendment (3)

 

This amendment inserts definitions of terms used in the proposed new nominated broadcaster declaration scheme into the Bill as proposed new section 121FAA.

 

Amendment (4)

 

This amendment to proposed new section 121FA of the BSA ensures that it is clear that a person may only apply to the ABA for a licence to provide an international broadcasting service if there is not a nominated broadcaster declaration in relation to that international broadcasting service.  If there is a nominated broadcaster declaration in relation to an international broadcasting service a transmission provider would have satisfied the ABA that they will apply on behalf of the content provider for a licence to provide the international broadcasting service.

 

 

Amendment (5)

 

This amendment to proposed new section 121FA inserts new subsections 121FA(1A) and 121FA(1B).  Proposed new subsection 121FA(1A) provides that a person who is the holder of a nominated broadcaster declaration in relation to an international broadcasting service proposed to be provided by a content provider may apply to the ABA for a licence authorising the content provider to provide the international broadcasting service.  The content provider is taken to be the applicant for the licence.

 

Proposed new subsection 121FA(1B) provides that an application for an international broadcasting licence under section 121FA may only be made on the basis of one licence per international broadcasting service.

 



Amendment (6)

 

This amendment makes a minor amendment to proposed new subsection 121FA(2) consequential upon Amendment (5).

 

Amendments (7) - (9)

 

These amendments to proposed new section 121FB of the BSA limit the rules in relation to corporate status and suitability to a person who is proposing to provide the content of an international broadcasting service.

 

Amendment (10)

 

This amendment proposes to insert new subsections (4) - (8) to proposed new section 121FB to:

 

·          require the ABA to make reasonable efforts to finalise its activities in relation to an application for an international broadcasting licence from a proposed content provider of the international broadcasting service within 30 days (proposed new subsection 121FB(4));

 

·          require the ABA to refer an application for an international broadcasting licence by the holder of a nominated broadcaster declaration on behalf of a content provider to the Minister for Foreign Affairs with a report about whether the proposed international broadcasting service complies with the international broadcasting guidelines, if the ABA is satisfied that the content provider is a company and the ABA does not decide that the content provider is an unsuitable applicant (proposed new subsection 121FB(5));

 

·          require the ABA to refuse to allocate an international broadcasting licence to an applicant if the application was made by the holder of a nominated broadcaster declaration on behalf of a content provider and the ABA is not satisfied that the content provider is a company, or the ABA decides that the content provider is an unsuitable applicant (proposed new subsection 121FB(6));

 

·          require the ABA to give notice of its refusal to allocate an international broadcasting licence under subsection 121FB(6) to the content provider and the holder of the nominated broadcaster declaration (proposed new subsection 121FB(7)); and

 

·          require the ABA to make reasonable efforts to finalise its activities in relation to an application for an international broadcasting licence from the holder of a nominated broadcaster declaration within 30 days (proposed new subsection 121FB(8)).

 

 

Amendments (11) - (14)

 

These amendments to proposed new section 121FD of the BSA ensure that all references in proposed new section 121FD to an application for an international broadcasting licence apply both to an application for an international broadcasting licence made by the content provider and an application made by the holder of a nominated broadcaster declaration on behalf of a content provider.

 

Amendment (15)

 

This amendment to proposed new section 121FD ensures that a direction to the ABA from the Minister for Foreign Affairs not to allocate an international broadcasting licence is notified to the applicant for the licence and the holder of the nominated broadcaster declaration, where the holder of a nominated broadcaster declaration has applied for the international broadcasting licence on behalf of a content provider.

 

Amendment (16)

 

This amendment to proposed new section 121FF provides that the conditions in section 121FF that apply to international broadcasting licences do not apply to an international broadcasting licence if a nominated broadcaster declaration is in force in relation to the licence.  Proposed new section 121FLE duplicates the licence conditions where there is a nominated broadcaster declaration in force in relation to an international broadcasting licence.

 

Amendment (17)

 

This amendment inserts a new Division 4A - Nominated broadcaster declarations into proposed new Part 8A of the BSA.  The proposed new Division sets out the detail of the nominated broadcaster declaration scheme.

 

Proposed new Division 4A of Part 8A of the Broadcasting Services Act 1992 - Nominated broadcaster declarations

 

Proposed new section 121FLA of the Broadcasting Services Act 1992 - Object of this Division

 

Proposed new section 121FLA sets out that the main object of Division 4A of Part 8A of the BSA is to provide for the making of nominated broadcaster declarations that allow an international broadcasting licence and a transmitter licence that is for use for transmitting the international broadcasting service to be held by different people.

 

Proposed new section 121FLB of the Broadcasting Services Act 1992 - Applications for nominated broadcaster declarations

 

This proposed new section provides that a person who is the licensee of a transmitter licence that is used, or intended to be used, for transmitting an international broadcasting service, or who intends to apply for a transmitter licence for transmitting an international broadcasting service, may apply to the ABA for a nominated broadcaster declaration in relation to the provision of the service by a particular content provider.

 

Proposed new section 121FLC of the Broadcasting Services Act 1992 - Making a nominated broadcaster declaration

 

Proposed new subsection 121FLC(1) requires the ABA to declare that the provision of an international broadcasting service by the content provider is nominated in relation to a transmitter licence, or proposed transmitter licence, if the ABA is satisfied that:

 

·          either the content provider holds an international broadcasting licence in relation to the international broadcasting service, or, if the declaration is made, the transmission provider or another person will, within 60 days after the making of the declaration, apply for an international broadcasting licence on behalf of the content provider; and

·          the transmission provider intends to transmit the international broadcasting service on behalf of the content provider; and

·          the transmission provider is a company that is formed in Australia or in an external territory; and

·          if the declaration were made, the transmission provider would be in a position to comply with all the obligations imposed on the transmission provider under proposed new section 121FLE.

 

Proposed new subsection 121FLC(2) requires the ABA to give copies of a nominated broadcaster declaration to both the content provider and the transmission provider.  Proposed new subsection 121FLC(3) requires the ABA to give notice of a refusal to make a nominated broadcaster declaration to both the transmission provider and the content provider.  Proposed new subsection 121FLC(4) requires the ABA to make reasonable efforts to make a declaration, or refuse to make a declaration, within 30 days after the application is made.  Proposed new subsection 121FLC(5) provides that the ABA is not prevented from making more than one nominated broadcaster declaration in relation to a particular international broadcasting service, so long as each declaration relates to a different transmitter licence or proposed transmitter licence.

 

Proposed new section 121FLD of the Broadcasting Services Act 1992 - Effect of nominated broadcaster declaration

 

This proposed new section sets out that the effect of a nominated broadcaster declaration is:

·          that for the purposes of the RA, the content provider is taken not to operate the transmitter (paragraph 121FLD(e));

·          that for the purposes of the BSA, the content provider is taken to provide the international broadcasting service (paragraph 121FLD(f));

·          that for the purposes of the BSA any programs transmitted by the licensee of the transmitter licence on behalf of the content provider are taken to be programs transmitted by the content provider (paragraph 121FLD(g)); and

·          for the purposes of Part 8A of the BSA (except section 121FLG), the ABA is taken to have given a written notice to the content provider if the ABA gives the notice to the licensee of the transmitter licence.

 

Proposed new section 121FLE of the Broadcasting Services Act 1992 - Conditions of nominated broadcaster declarations

 

This new section imposes conditions on nominated broadcaster declarations which mirror the conditions in proposed new section 121FF that are imposed on international broadcasting licences where there is no nominated broadcaster.

 

Proposed new section 121FLF of the Broadcasting Services Act 1992 - Offence for breach of conditions of nominated broadcaster declaration

 

This new section provides that the holder of a nominated broadcaster declaration is guilty of an offence if the person intentionally breaches a condition of the nominated broadcaster declaration.  The penalty for this offence is 2,000 penalty units.  Currently a penalty unit is $110, so the current maximum penalty is $220,000.

 

Proposed new section 121FLG of the Broadcasting Services Act 1992 - Revocation of nominated broadcaster declaration

 

This proposed new section sets out the requirements in relation to revocation of a nominated broadcaster declaration by the ABA.

 

The ABA must revoke a nominated broadcaster declaration in all of the following circumstances:

·          if the ABA is satisfied that the holder of the declaration is neither transmitting, nor proposing to transmit, the international broadcasting service on behalf of the content provider; or the holder of the declaration is involved, or proposes to become involved, in the selection or provision of programs to be transmitted on the international broadcasting service; or the holder of the declaration is not a company that is formed in Australia or in an external territory (proposed new subsection 121FLG(1));

·          if the ABA is satisfied that, at the time the declaration was made, there was no international broadcasting licence in relation to the service and either no application for a licence was made under subsection 121FA(1A) within 60 days after the making of the declaration, or the licence application was refused (proposed new subsection 121FLG(2)); or

·          if either the holder of the declaration or the content provider notify the ABA in writing that either person does not consent to the continued operation of the declaration (proposed new subsection 121FLG(3)).

 

If the ABA revokes a declaration they must give a copy of the revocation to the person who held the declaration and the content provider (proposed new subsection 121FLG(4)).

 

Proposed new subsection 121FLG(5) provides that a revocation under subsection 121FLG(1), (2) or (3) takes effect on the date specified in the revocation.

 

Proposed new subsection 121FLG(6) provides that the ABA must not revoke a nominated broadcaster declaration under subsection 121FLG(1) or (2) (that is a revocation other than a revocation requested by either the holder of the declaration or the content provider) unless the ABA has first given the holder of the declaration and the content provider a written notice setting out a proposal to revoke the declaration and inviting a submission on the proposal and considered any submission received from the holder of the declaration or content provider within the time limit specified in the notice.

 

Proposed new subsection 121FLG(7) requires the time limit specified in the notice to be at least 7 days.

 

Proposed new subsections 121FLG(8) and (9) are intended to ensure that a holder of a nominated broadcaster declaration and a content provider can’t agree to prevent a request for revocation of a nominated broadcaster declaration by the ABA.  A contract to prevent a person giving notice to the ABA that a person does not consent to the continued operation of a declaration, or to impose any restriction on the giving of such a notice would be void.

 

Proposed new section 121FLH of the Broadcasting Services Act 1992 - Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company

 

This proposed new section sets out the circumstances in which the ABA must cancel an international broadcasting licence when a nominated broadcaster declaration has been revoked, and there is an international broadcasting licence in force.  The general rule is that the ABA must cancel a licence when the content provider is not a company formed in Australia or has not arranged for another person who is a company formed in Australia to provide the service on behalf of the content provider.

 

The ABA must cancel the international broadcasting licence when:

·          30 days pass after the revocation of the nominated broadcaster declaration and the ABA is satisfied that both: the content provider is not a company formed in Australia; and the content provider has not taken reasonable steps to arrange for the international broadcasting service to be provided by an Australian company (proposed new paragraph 121FLH(1)(c)); or

·          90 days pass after the revocation and the ABA is satisfied that the content provider is not a company formed in Australia (proposed new paragraph 121FLH(2)(c)).

 

Proposed new subsection 121FLH(3) allows the ABA to give a content provider a period of longer than 90 days to arrange for the service to be provided by a company formed in Australia.  However, proposed new subsection 121FLH(4) provides that the ABA must not notify a greater number of days unless there are exceptional circumstances.  This is intended to ensure that, while extensions of time may be granted by the ABA when warranted, it is clear that such an extension should rarely be granted.

 

Proposed new subsection 121FLH(5) imposes an obligation on the ABA to give the content provider written notice of its intention to cancel a licence under subsection 121FLH(1) or (2), and a reasonable opportunity to make submissions in relation to the proposed cancellation.  Proposed new subsection 121FLH(6) requires the ABA to notify the ACA of a cancellation under subsections 121FLH(1) or (2).

 

Proposed new section 121FLJ of the Broadcasting Services Act 1992 - Register of nominated broadcaster declarations

 

This proposed new section requires the ABA to maintain a register that contains details of nominated broadcaster declarations currently in force.  The Register may be maintained by electronic means and must be made available for inspection on the Internet.

 

Amendment (18)

 

This amendment implements a recommendation of the Senate Foreign Affairs, Defence and Trade Committee, that the international broadcasting guidelines made by the ABA under proposed new section 121FP of the BSA be a disallowable instrument.

 

Amendment (19)

 

This amendment implements the second recommendation of the Senate Defence, Foreign Affairs and Trade Committee.  The amendment inserts a new section 121FS into the BSA that requires the Minister for Foreign Affairs to table in Parliament a copy of a statement about a decision to refuse to allocate an international broadcasting licence to a person who applies for a licence, or a decision to suspend or cancel an international broadcasting licence.  The Minister is only required to table the statement in Parliament if the Minister refuses a request from a person aggrieved by a decision to refuse to allocate a licence, or to suspend or cancel a licence, for a statement of reasons in relation to the decision.

 

As a result of the amendment of the AD(JR) Act at item 1 of Part 1 of Schedule 1 of the Bill, the Minister for Foreign Affairs is not required to provide a statement of reasons in relation to decisions under Part 8B of the BSA.

 



Amendment (20)

 

This amendment adds ABA decisions in relation to the nominated broadcaster scheme to the list of decisions of the ABA that are reviewable by the Administrative Appeals Tribunal.  The decisions are: refusal to make a nominated broadcaster declaration; revocation of a nominated broadcaster declaration; and cancellation of an international broadcasting licence following revocation of a nominated broadcaster declaration.

 

Amendment (21)

 

This amendment inserts a new definition into section 5 of the RA for the term provisional international broadcasting certificate .

 

Amendment (22)

 

This amendment inserts a new subsection into section 100 of the RA which provides that if a provisional international broadcasting certificate is in force in relation to an application for a transmitter licence and the application for the licence is made by the holder of the certificate, and the conditions set out in the certificate are satisfied, the ACA must not refuse to issue the transmitter licence unless the ACA is satisfied that there are exceptional circumstances that warrant the refusal.

 

This amendment is intended to ensure that the acquisition of a provisional international broadcasting certificate gives the person a genuine indication that, if the conditions in the certificate are satisfied, the ACA will issue the transmitter licence when the application for the transmitter licence is made.

 

Amendment (23)

 

This amendment proposes to insert a new Division 10 - Provisional international broadcasting certificates into Part 3.3 of the RA.

 

Proposed new Division 10 of Part 3.3 of the Radiocommunications Act 1992

 

Proposed new section 131AE of the Radiocommunications Act 1992 - Applications for certificates

 

Proposed new section 131AE of the RA provides that a person who proposes to make an application for a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service may apply to the ACA for a provisional international broadcasting certificate in relation to the proposed application for the transmitter licence.

 



Proposed new section 131AF of the Radiocommunications Act 1992 - Issuing certificates

 

Proposed new section 131AF of the RA sets out the process for the issuing of a provisional international broadcasting certificate by the ACA.  Specifically it provides that:

 

·          the ACA may issue such a certificate (proposed new subsection 131AF(1));

·          the certificate must state that the ACA will be disposed to issue the transmitter licence if the following conditions are satisfied: the applicant applies for a transmitter licence while the certificate is in force; at the time the application is made there is both an international broadcasting licence that authorises the provision of the international broadcasting service concerned and spectrum is available for the provision of that service; and any other conditions the ACA specifies in the certificate (proposed new subsection 131AF(2));

·          in deciding whether to issue a certificate, the ACA must have regard to all the matters to which it would be required to have regard when deciding whether to issue the transmitter licence (other than the requirement in subsection 100(3B) of the RA that provides that the ACA must not issue a transmitter licence that authorises the operation of a transmitter for transmitting an international broadcasting licence unless there is in force an international broadcasting licence that authorises provision of that service); and may have regard to any other matters which the ACA is permitted to have regard when deciding whether to issue the transmitter licence; and such other matters as the ACA considers relevant (proposed new subsection 131AF(3));

·          if the ACA refuses to issue a provisional international broadcasting certificate to a person, the ACA must give the person written notice and a statement of reasons (proposed new subsection 131AF(4)).

 

Proposed new section 131AG of the Radiocommunications Act 1992 - Duration of certificates

 

This proposed new section provides that a provisional international broadcasting certificate comes into force on the day it was issued and remains in force for 240 days, and that if a provisional international broadcasting certificate expires, a person may make an application for a fresh certificate.

 

Amendment (24)

 

This amendment inserts a new paragraph into section 285 of the RA so that a refusal to issue a provisional international broadcasting certificate under section 131AF is a decision that may be subject to reconsideration by the ACA, and, subsequently, to review by the Administrative Appeals Tribunal under section 292 of the RA.

 



Amendment (25)

 

This amendment to the transitional provisions of the Bill adds to item 36 a reference to subsection 121FB(7) consequential upon Amendment 10.

 

Amendment (26)

 

This amendment adds a new subitem (1A) to item 36 which provides that, for the purposes of the transitional rule in subitem 36(1), if an application is made on behalf of a content provider under subsection 121FA(1A) of the BSA, the content provider is taken to have made the application.  Under proposed new subsection 121FA(1A) of the BSA the holder of a nominated broadcaster declaration may apply for an international broadcasting licence on behalf of a content provider (see Amendment 5).