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Broadcasting Legislation Amendment Bill 2001

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1998 -1999-2000-2001

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

BROADCASTING LEGISLATION AMENDMENT BILL 2001

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Richard Alston, Minister for Communications, Information Technology and the Arts)

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE SENATE TO THE BILL AS INTRODUCED



 

BROADCASTING LEGISLATION

AMENDMENT BILL 2001

 

OUTLINE

 

The Broadcasting Legislation Amendment Bill (the Bill) amends the Broadcasting Services Act 1992 (the BSA), the Australian Broadcasting Corporation Act 1983 (the ABC Act), and the Special Broadcasting Service Act 1991 (the SBS Act):

(a)     to transfer provisions giving the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) the specific function of datacasting from the BSA to their respective enabling legislation;

(b)    to allow the ABC and SBS to develop and operate datacasting codes of practice by removing the requirement that they be subject to codes of practice developed by the commercial datacasting industry; and

(c)     to make a number of minor amendments to the provisions of the BSA inserted by the Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (the Digital Act).

 

Clauses 39 and 40 of Schedule 6 of the BSA, which were inserted by the Digital Act, give the ABC and the SBS the function of providing datacasting services under a datacasting licence if those Corporations respectively apply for a datacasting licence. These provisions were included in Schedule 6 to achieve the following objectives:

 

·         making any ABC or SBS involvement in datacasting a matter for their respective Boards (and therefore not making it a charter function of those organisations); and

 

·         requiring any ABC or SBS involvement in datacasting to be on the same basis as other datacasters.

 

At present there is no reference to the provision of datacasting services in either the ABC Act or the SBS Act. In order to best reflect the ABC’s and SBS’s ability to datacast, the Bill amends the BSA by removing the provision for ABC and SBS datacasting (Items 5 and 6 of Schedule 1), and amends the ABC and SBS Acts by inserting equivalent clauses (Items 1-3 of Schedules 2 and 3 respectively).

 

The Bill also amends  codes of practice and complaints handling procedures in relation to ABC and SBS datacasting. These amendments:

·         modify section 8(1)(e) of the ABC Act and section 10(1)(j) of the SBS Act to ensure that the respective Boards of the ABC and SBS have the power to develop codes of practice for their datacasting services (Item 4 in Schedules 2 and 3 respectively);

·         amend Part 4 and clause 37 of Schedule 6 of the BSA to exempt ABC and SBS datacasting services from provisions relating to codes of practice and ABA investigation of complaints under codes of practice (Items 4A and 4B of Schedule 1); and

·         ensure the code of practice complaints handling provisions in Division 2 of Part 11 of the BSA apply to both national broadcasting services and datacasting services provided by the ABC and SBS (Items 1A, 1B and 1C of Schedule 1).

 

The amendments will assist the development and operation of codes by the ABC and SBS by removing a requirement that they be subject to codes of practice developed by the commercial datacasting industry that may not suit the kinds of datacasting services provided by the ABC and SBS. At the same time, the ABC and SBS will remain subject to ABA licensing procedures and ABA oversight in relation to breaches of licence conditions. This ensures that any datacasting service provided by the ABC and SBS will remain within the general regulatory framework for datacasting.

 

The Bill also rectifies a number of minor errors that occurred as a consequence of various amendments made in the Senate to the Broadcasting Amendment (Digital Television and Datacasting) Bill (the Digital Bill) during consideration of the Bill in June 2000 (Items 2-4 of Schedule 1).

 

FINANCIAL IMPACT STATEMENT

 

The Bill is not expected to have any impact on Commonwealth expenditure or revenue.



 

BROADCASTING LEGISLATION

AMENDMENT BILL 2001

 

NOTES ON CLAUSES

Clause 1 - Short title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Broadcasting Legislation Amendment Act 2001.

 

Clause 2 - Commencement

 

Clause 2 provides that the Bill, when enacted, will commence on the day on which it receives Royal Assent.

 

Clause 3 - Schedule(s)

 

Clause 3 provides, in effect, that provisions in the BSA, the ABC Act and the SBS Act that are specified respectively in Schedules 1, 2 and 3 to the Bill are amended or repealed in accordance with the applicable items of those Schedules, and that other items in the Schedules have effect according to their terms.

 

Schedule 1 Proposed amendments to the

Broadcasting Service Act 1992

 

Item 1A, 1B and 1C - Amendments to ABC/SBS datacasting- codes of practice and complaints

 

Division 2 of Part 11 of the BSA establishes a complaints handling procedure in relation to complaints made about the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that that national broadcasting service has acted contrary to a code of practice developed by that national broadcasting service and notified to the ABA.

 

Items 1A, 1B and 1C extend the existing complaint handling procedure to apply to complaints made about datacasting services provided by the ABC or SBS on the ground that the ABC or SBS has acted contrary to a code of practice developed by that Corporation and notified to the ABA.

 

Item 2 - Repeal of paragraphs 6(8)(ca) and 19(8)(ca) of Schedule 4

 

Paragraphs 6(8)(ca) and 19(8)(ca) of Schedule 4 of the BSA both refer to Category B digital program-enhancement content. These paragraphs have no substantive operation after the deletion of subclauses 6(15)-(19) and 19(15)-(19) by amendments made in the Senate to the Digital Bill.

 

 

 

Item 3 - Amendment to subparagraphs 37E(2)(a)(i) and 37F(2)(a)(i) of Schedule 4

 

Item 4 omits an incorrect reference to ‘SDTV mode’ in subparagraphs 37E(2)(a)(i) and 37F(2)(a)(i) of Schedule 4 and substitutes a reference to ‘SDTV digital mode’.

 

Item 4 - Amendment to paragraph 27A(1)(d) of Schedule 6

 

Clause 27A of Schedule 6 of the BSA provides that the ABA may make an exemption order in relation to a transmission of matter by a datacasting licensee where the matter is content proposed to be copied from the Internet. Clause 20AA provides that the conditions contained in clauses 14 and 16 of Schedule 6 do not apply in relation to matter that is the subject of an exemption order under subclause 27A(1).

 

This proposed amendment omits an incorrect reference to clause ‘20A’ in clause 27A and substitutes a reference to clause ‘20AA’ of Schedule 6.

 

Items 4A and 4B - Insertion of new clause 35A and new subclause 37(3) in Schedule 6

 

Part 4 of Schedule 6 deals with codes of practice for datacasting licensees. Clause 28 of the Schedule provides that a group that the ABA is satisfied represents datacasting licensees should develop a code of practice for the datacasting industry, in consultation with ABA and taking account of any relevant ABA research. Under clause 37 of Schedule 6, the ABA has the power to investigate complaints made in respect of codes of practice developed under Part 4.

 

Item 4A inserts a new clause 35A in Schedule 6 of the BSA which exempts the ABC and SBS from the standard codes of practice clauses applying to datacasting licensees in general. 

 

Item 4B inserts a new subclause 37(3) in Schedule 6 which provides that the standard provision for dealing with complaints about compliance with datacasting codes of practice does not apply to the ABC and SBS.

 

Item 5 - Amendment to the heading of Part 6 of Schedule 6

 

Consequential to the proposed deletion of clauses 39 and 40 in Item 6, it is proposed that the heading of Part 6 of Schedule 6 be changed to ‘Control of datacasting transmitter licences’ to reflect the nature of the remaining provision in Part 6 of Schedule 6 of the BSA.

 

Item 6 - Repeal of clauses 39 and 40 of Schedule 6

 

Clauses 39 and 40 of Schedule 6 of the BSA give the ABC and SBS the function of providing datacasting services under a datacasting licence if those Corporations respectively apply for a datacasting licence. Consequential to the insertion of equivalent clauses in the enabling legislation of the ABC and the SBS proposed by Item 3 in Schedule 2 and Item 3 in Schedule 3 of the Bill, this Item repeals clauses 39 and 40 of Schedule 4 of the BSA.

 

Consequential to the proposed amendment in Item 5 to the heading of Part 6 of Schedule 6 of the BSA, the note to Item 6 provides that the heading of Clause 41, the remaining clause in this Part, be replaced with the heading ‘Datacasting transmitter licences not to be controlled by the ABC or SBS’.



Schedule 2 Proposed amendments to the

Australian Broadcasting Corporation Act 1983

 

Item 1 - Insertion of definition of datacasting licence in subsection 3(1)

 

This item inserts a definition of datacasting licence in subsection 3(1) (the definition clause) of the ABC Act. This term is used in the proposed new section 6A.

 

For the purposes of the ABC Act, it is proposed that the term datacasting licence will have the same meaning as in the BSA. In the BSA, a datacasting licence means a licence to provide a datacasting service under Schedule 6 of that Act.

 

Item 2 - Insertion of definition of datacasting service in subsection 3(1)

 

This item inserts a definition of datacasting service in subsection 3(1) (the definition clause) of the ABC Act. This term is used in the proposed new section 6A. For the purposes of the Act, the term datacasting service will have the same meaning as in the BSA.

 

In the BSA, a datacasting licence means a service that delivers content:

·           whether in the form of text; or

·           whether in the form of data; or

·           whether in the form of speech, music or other sounds; or

·           whether in the form of visual images (animated or otherwise); or

·           whether in any other form; or

·           whether in any combination of forms;

 

to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.

 

Item 3 - Insertion of new section 6A

 

Item 3 inserts a new section 6A which provides that where the ABC applies for and receives a datacasting licence then, in addition to the ABC Charter functions contained in section 6 of the ABC Act, the ABC has the function of providing a datacasting service under, and in accordance with the conditions of, the licence. This provision mirrors subclause 39(1) of Schedule 6 of the current BSA.

 

This provision does not require the ABC to provide datacasting services. It provides the ABC with the ability to choose how to best use its transmission capacity by enabling it, for example, to use all the available digital transmission capacity to provide multi-channelled national television broadcasting services rather than datacasting services, if it so chooses.

 

The ABC would have the power under section 25 of the ABC Act to apply for a datacasting licence. The ABC would be able to apply its money in relation to the datacasting function under section 68 of the ABC Act.

 

Where, as a consequence of new subsection 6A(1), it becomes a function of the ABC to provide a datacasting service, any business or other activity related to the performance of the datacasting function will be an authorised business for the purposes of subsection 25A(2).

 

New subsection 6A(2) provides that subsection 6A(1) is not intended to impose any obligation on the corporation in relation to the provision of a datacasting licence, beyond the obligations imposed on the ABC by the datacasting licence. It is intended that this subsection will prevent the ABC being compelled by court proceedings to carry out datacasting functions without affecting the ability to take enforcement action under the BSA in relation to licensing requirements.

 

Item 4 - Substitution of paragraph 8(1)(e)

 

Section 8 of the ABC Act sets out the duties of the ABC Board. Paragraph 8(1)(e) provides that it is a duty of the Board to develop codes of practice relating to programming matters and to notify those codes to the Australian Broadcasting Authority.

 

Item 4 replaces current paragraph 8(1)(e) with a new paragraph which provides that it is a duty of the Board to develop codes of practice in relation to both programming matters, and in relation to a datacasting service where the ABC has the function of providing a datacasting service under new section 6A. The ABC will be required to notify those codes to the Australian Broadcasting Authority, and a breach of a datacasting code of practice by the ABC would be subject to the complaints mechanism in Division 2 of Part 11 of the BSA Act, as proposed to be amended under Items 1A, 1B and 1C of Schedule 1 of the Bill.

 

Schedule 3 Proposed amendments to the

Special Broadcasting Act 1991

 

Item 1 - Insertion of definition of datacasting licence in subsection 3(1)

 

This item inserts a definition of datacasting licence in subsection 3(1) (the definition clause) of the SBS Act. This term is used in the proposed new section 6A.

 

For the purposes of the SBS Act, it is proposed that the term datacasting licence will have the same meaning as in the BSA. In the BSA, a datacasting licence means a licence to provide a datacasting service under Schedule 6 of that Act.

 

Item 2 - Insertion of definition of datacasting service in subsection 3(1)

 

This item inserts a definition of datacasting service in subsection 3(1) (the definition clause) of the SBS Act. This term is used in the proposed new section 6A. For the purposes of the Act, the term datacasting service will have the same meaning as in the BSA.

 

In the BSA, a datacasting licence means a service that delivers content:

·         whether in the form of text; or

·         whether in the form of data; or

·         whether in the form of speech, music or other sounds; or

·         whether in the form of visual images (animated or otherwise); or

·         whether in any other form; or

·         whether in any combination of forms;

 

to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.

 

Item 3 - Insertion of new section 6A

 

Item 3 inserts a new section 6A which provides that where the SBS applies for and receives a datacasting licence then, in addition to the SBS Charter functions contained in section 6 of the SBS Act, the SBS has the function of providing a datacasting service under, and in accordance with the conditions of, the licence. This provision mirrors subclause 40(1) of Schedule 6 of the current BSA.

 

This provision does not require the SBS to provide datacasting services. It provides the SBS with the ability to choose how to best use its transmission capacity by enabling it, for example, to use all the available digital transmission capacity to provide multi-channelled national television broadcasting services rather than datacasting services, if it so chooses.

The SBS would have the power under section 44 of the SBS Act to apply for a datacasting licence. The SBS would be able to apply its money in relation to the datacasting function under section 58.

 

Where, as a consequence of new subsection 6A(1), it becomes a function of the SBS to provide a datacasting service, any business or other activity related to the performance of the datacasting function will be an authorised business for the purposes of subsection 52(2). When performing the datacasting function, the SBS will be subject to the datacasting regime in Schedule 6 of the BSA in the same way as other datacasters.

 

New subsection 6A(2) provides that subsection 6A(1) is not intended to impose any obligation on the corporation in relation to the provision of a datacasting licence, beyond the obligations imposed on the SBS by the datacasting licence. It is intended that this subsection will prevent the SBS being compelled by court proceedings to carry out datacasting functions without affecting the ability to take enforcement action under the BSA in relation to licensing requirements.

 

Item 4 - Substitution of paragraph 10(1)(j)

 

Section 10 of the SBS Act sets out the duties of the SBS Board. Paragraph 10(1)(j) provides that it is a duty of the Board to develop codes of practice relating to programming matters and to notify those codes to the Australian Broadcasting Authority.

 

Item 4 replaces current paragraph 10(1)(j) with a new paragraph which provides that it is a duty of the Board to develop codes of practice in relation to both programming matters, and in relation to a datacasting service where the SBS has the function of providing a datacasting service under new section 6A. The SBS will be required to notify those codes to the Australian Broadcasting Authority, and a breach of a datacasting code of practice by the SBS would be subject to the complaints mechanism contained Division 2 of Part 11 of the BSA Act, as proposed to be amended under Items 1A, 1B and 1C of Schedule 1 of the Bill.