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Broadcasting Legislation Amendment Bill (No. 3) 2002 [2003]

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2002

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

BROADCASTING LEGISLATION AMENDMENT BILL (NO. 3) 2002

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Honourable Richard Alston)

 



BROADCASTING LEGISLATION AMENDMENT BILL (NO. 3) 2002

 

 

OUTLINE

 

The Broadcasting Legislation Amendment Bill (No. 3) 2002 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) to:

·         replace the current requirement that national and commercial television broadcasters must transmit at least 20 hours of HDTV programs each week (commencing from specified dates) with an annual minimum requirement of 1040 hours;

·         clarify that where only part of a television program meets the requirements of a HDTV program, that part should be considered a HDTV program for the purposes of the HDTV quota obligations, and provide that a HDTV program may include limited extracts of archival material;

·         provide that a HDTV program is to include advertisements, community service announcements, station or program promotions or similar material broadcast during the program; and

·         provide that the statutory review of HDTV quota arrangements currently scheduled to be conducted by 1 January 2004, be conducted by 1 July 2005.

 

The proposed changes give effect to the Government’s 2001 election policy that it would consider amendments to the digital broadcasting regime in relation to HDTV arrangements.

 

The BSA currently requires broadcasters to transmit at least 20 hours per week of HDTV programs in digital mode on the HDTV version of their service in each area from two years after the commencement of the simulcast period in that area. The Broadcasting Legislation Amendment Bill (No. 1) 2002, introduced into Parliament earlier these sittings, has the effect of delaying the commencement of the HDTV obligations in mainland State capitals until 1 July 2003.

 

The current provisions in the BSA do not allow the HDTV quota requirements to be met through averaging over any period longer than one week.  The Bill amends the requirements so that the broadcasters are required to transmit at least 1040 hours per year of HDTV programs in digital mode in that area on the HDTV version of the service (from two years after the commencement of the simulcast period in their area or from 1 July 2003, whichever is the later).

 

This will provide greater flexibility to broadcasters in the way they meet the quota and avoid situations where programming decisions are made to satisfy the quota that are not commercially sensible.  At the same time it will ensure that HDTV programming is available for people who wish to purchase HDTV receivers.

 

The current legislation does not indicate how non-HD material included in HD programming is to be accounted for in the HD quota.  This Bill contains amendments that make it clear that where only part of a television program meets the requirements of a HDTV program, only that part should be considered a HDTV program for the purposes of the HDTV quota obligations.  In cases where HDTV programs contain insubstantial amounts of archival material, that material may be counted towards the total quota requirements for HDTV programming.

 

The Bill also includes provisions making it clear that any advertising or sponsorship, community service announcement, station or program promotion, news break or weather bulletin or similar material broadcast during a HD program or part of a HD program can be counted for quota purposes.

 

The amendments contained in the Broadcasting Legislation Amendment Bill (No. 1) mean that HDTV transmissions will not be required to commence until 1 July 2003. There would be very little experience on which to base the review if it were conducted at the time currently required, by 1 January 2004.  Therefore, the Bill proposes that the review into HDTV quotas be delayed so that the Minister must cause it to be conducted by 1 July 2005, two years after the commencement of HDTV requirements.

 

The Bill is to commence on Royal Assent.

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill will not have a significant financial impact.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides for the citation of the Broadcasting Legislation Amendment Act (No. 3) 2002 (the Act).

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides that the Act will commence on Royal Assent. 

 

Clause 3 - Schedule(s)

 

By virtue of this clause, provisions of the BSA are amended as set out in the Schedule to the Bill.

 



Schedule 1 - Amendment of the Broadcasting Services Act 1992

 

Item 1 - Clause 1 of Schedule 4

 

Clause 1 of Schedule 4 is a simplified outline of the Schedule.

 

Clause 1 is amended by this item so that it refers to reviews of various aspects of Schedule 4 by “specified dates”, rather than specifying a number of dates. 

 

This amendment is made for the following reasons:

·         item 11 below delays the review of HDTV quotas;

·         in any event, clause 1 does not currently accurately list review dates provided for in Schedule 4, because some review provisions were inserted, and dates for some reviews were changed, by parliamentary amendments to earlier legislation.

 

Item 2 - Paragraph 37E(2)(b) of Schedule 4

 

This amendment is consequential on item 3 below. 

 

Item 3 - After subclause 37E(2A) of Schedule 4

 

This item inserts a new subclause 37E(2B) into Schedule 4. 

 

The effect of this item is to change the HDTV quota requirement for commercial television broadcasting licensees in non-remote areas from 20 hours per week to 1040 hours per calendar year (which is an average of 20 hours per week). 

 

The “phase-in period” concept is inserted into clause 37E by Broadcasting Legislation Amendment Bill (No. 1) 2002, which has the effect of delaying the start of HDTV quota requirements in mainland State capitals for 6 months, ie until 1 July 2003. 

 

In non-remote areas outside the mainland State capitals, the HDTV quota requirements commence 2 years after the start of the relevant simulcast period. 

 

Simulcast periods commence at various dates in various areas.  In cases where a simulcast period in a particular area does not start on 1 January in a year, new paragraphs 37E(2B)(b) and (c) allow broadcasters in that area to satisfy the annual quota for the remaining part of the first calendar year on a pro-rata basis.  If the simulcast period starts in the last 3 months of a calendar year, broadcasters may satisfy the quota on a pro-rata basis over a longer period of up to 15 months.

 

Item 4 - Subclause 37EA(7) of Schedule 4

 

This item repeals and re-enacts subclause 37EA(7) of Schedule 4, as a consequence of new subclause 37E(2B) (inserted by item 3 above). 

 

The substantive difference between the current and new provisions is that the reference to the 20 hour weekly quota is changed to a reference to the annual quota provided for by new subclause 37E(2B). 

 

Item 5 - Subclause 37EA(10) of Schedule 4 (definition of HDTV 20 hour requirement)

 

This item repeals a definition which is made redundant by new subclause 37E(2B) (inserted by item 3 above). 

 

Item 6 - Paragraph 37F(2)(b) of Schedule 4

Item 7 - After subclause 37F(2A) of Schedule 4

Item 8 - Subclause 37FA(7) of Schedule 4

Item 9 - Subclause 37FA(10) of Schedule 4 (definition HDTV 20 hour requirement )

 

Items 6 to 9 make amendments to the provisions relating to HDTV quotas for national broadcasters in non-remote areas (ie clauses 37F and 37FA of Schedule 4).  These amendments correspond to the amendments made by items 2 to 5 above to the provisions relating to HDTV quotas for commercial broadcasters in non-remote areas (ie clauses 37E and 37EA of Schedule 4). 

 

Item 10 - Clause 37L of Schedule 4

 

This item repeals and re-enacts clause 37L of Schedule 4, which defines “high-definition television program” for the purposes of the Schedule. 

 

The substantive changes to clause 37L are to:

·         clarify that where only part of a television program meets the requirements of a HDTV program, that part should be considered a HDTV program for the purposes of the HDTV quota obligations (see the qualification “to the extent that” in new paragraphs 37L(1)(a), (1)(b), (2)(a), (2)(b), (2)(c) and (2)(d));

·         provide that a HDTV program may include an insubstantial proportion of extracts of non-HDTV “archival material” (see new subclauses 37L(3) and (4)); and

·         provide that a HDTV program is to include advertising and sponsorship, community service announcement, station or program promotion, news break or weather bulletin or similar material broadcast during the program (see the references to “incidental material” in new paragraphs 37L(1)(a), (1)(b), (1)(c), (2)(a), (2)(b), (2)(c), (2)(d) and (2)(e), and new subclause 37L(6)).

 

“Archival material” is essentially non-HDTV material which was originally produced before 1 July 2003 (the first date on which HDTV programming must be transmitted) or some other date to be determined by the Minister.  In order to count towards the HDTV quota, this archival material must be extracts of genuinely non-contemporary material which collectively represent an “insubstantial proportion” of the total program (such as a HDTV documentary which has “flash-backs” to historic material).  If there were greater amounts of archival material in a program, then none of the archival material would count towards the quota.  For example, if a composite program of non-contemporary non-HDTV material were merely bound together by a presenter filmed in HDTV, then only the scenes with the presenter would count towards the quota.

 

For HDTV quota purposes, non-HDTV incidental material such as advertisements in an otherwise HDTV program or HDTV program segment, can be counted towards the duration of that program or program segment.  For example, where a program that was scheduled to run for a commercial hour, say between 7.30 to 8.30 pm, was made up of HDTV material except for the advertisements and news breaks shown during that hour, it would count for a full hour towards the quota.  Similarly, where only part of a program meets the requirements for HDTV, those advertisements broadcast during the HDTV part of the program would count towards the duration of the program for the purposes of the HDTV quota.

 

Item 11 - Clause 60A of Schedule 4

 

This item amends clause 60A of Schedule 4 to extend the deadline for the review of HDTV quotas for 18 months, from 1 January 2004 to 1 July 2005.  The heading to clause 60A is also amended accordingly.