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Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008

Schedule 1 R 18+ programs

   

Broadcasting Services Act 1992

1  Paragraph 139(6)(c)

After “11(1)”, insert “or 12(1)”.

2  Subsection 140A(6)

After “11(1)”, insert “or 12(1)”.

3  Section 204 (at the end of the table)

Add:

 

Declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service

Subclause 12(4) of Schedule 2

The person who provides the service under a class licence

Refusal to approve the making of a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service

Subclause 12(6A) of Schedule 2

The person who provides the service under a class licence

Refusal to revoke a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service

Subclause 12(9) of Schedule 2

The person who provides the service under a class licence

Refusal to approve an electronic format, or a publication, in relation to a subscription television narrowcasting service

Subclause 12(16A) of Schedule 2

The person who provides the service under a class licence

Revocation of the approval of an electronic format, or a publication, in relation to a subscription television narrowcasting service

Subclause 12(16A) of Schedule 2

The person who provides the service under a class licence

4  Subclause 5(3) of Schedule 2

Omit “so made”, substitute “made under subclause (2)”.

5  After subclause 5(3) of Schedule 2

Insert:

          (3A)  If:

                     (a)  a broadcaster provides a subscription television narrowcasting service under a class licence; and

                     (b)  the service is capable of being received by a subscriber in a declared prescribed area; and

                     (c)  at least one R 18+ program is broadcast by the service on a particular day; and

                    (ca)  the service is not exempt from this subclause;

the broadcaster must cause a record of the following matters to be made in a form approved in writing by the ACMA:

                     (d)  the total number of hours of R 18+ programs broadcast by the service during that day;

                     (e)  the total number of hours of programs broadcast by the service during that day.

Note 1:       For declared prescribed area and R 18+ program , see subclause (10).

Note 2:       See also subclauses 12(16A) to (16C).

          (3B)  If:

                     (a)  a broadcaster provides a subscription television narrowcasting service under a class licence; and

                     (b)  a declaration under subclause 12(6A) is in force in relation to the service;

then, unless the ACMA otherwise determines, the service is exempt from subclause (3A) of this clause.

       (3BA)  The Minister may give the ACMA a written direction in relation to the ACMA’s powers under subclause (3B).

        (3BB)  The ACMA must comply with a direction under subclause (3BA).

        (3BC)  A direction under subclause (3BA) is a legislative instrument.

Note 1:       Section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the direction—see section 44 of that Act.

Note 2:       Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not apply to the direction—see section 54 of that Act.

          (3C)  Subject to this clause, a broadcaster must retain in the broadcaster’s custody a record made under subclause (3A):

                     (a)  for 120 days after the day to which the record relates; or

                     (b)  for such longer period as the ACMA directs in writing.

          (3D)  Subclauses (3A), (3B), (3BA), (3BB), (3BC) and (3C) cease to have effect at the same time as subclause 12(1) ceases to have effect.

6  Subclause 5(4) of Schedule 2

Omit “so made”, substitute “made under subclause (2) or (3A)”.

7  Subclause 5(4) of Schedule 2

After “(3)”, insert “or (3C)”.

8  Subclause 5(9) of Schedule 2

After “(2)”, insert “or (3A)”.

9  At the end of clause 5 of Schedule 2

Add:

     (10)      In subclause (3A):

declared prescribed area has the same meaning as in the Northern Territory National Emergency Response Act 2007 .

R 18+ program has the same meaning as in clause 12.

10  At the end of Part 7 of Schedule 2

Add:

12   Condition applicable to declared subscription television narrowcasting services provided in the Northern Territory under class licences

             (1)  The provision by a person of a declared subscription television narrowcasting service under a class licence is subject to the condition that the licensee will not provide the service in a way that will enable a subscriber in a declared prescribed area to receive the service.

Sunset provision

             (2)  Subclause (1) ceases to have effect at whichever is the earlier of the following times:

                     (a)  the end of the period of 5 years that began on the day after the day on which the Northern Territory National Emergency Response Act 2007 received the Royal Assent;

                     (b)  if a shorter period is specified in a written instrument made by the Minister for the purposes of this paragraph—the end of that shorter period.

             (3)  An instrument under paragraph (2)(b) is a legislative instrument.

Declared subscription television narrowcasting service

             (4)  The Minister may, by writing, declare that a specified subscription television narrowcasting service is a declared subscription television narrowcasting service for the purposes of this clause.

             (5)  The Minister must not make a declaration under subclause (4) in relation to a subscription television narrowcasting service unless the Minister is satisfied that the total number of hours of R 18+ programs broadcast by the service during a particular declaration test period exceeds 35% of the total number of hours of programs broadcast by the service during that period. For this purpose, a declaration test period is a 7-day period that occurs within the 21-day period that ends at the end of the day before the day on which the Minister makes the declaration.

             (6)  A declaration test period must not begin before the commencement of this clause.

          (6A)  If a person provides a subscription television narrowcasting service under a class licence, the person may, with the written approval of the Minister, declare that the service is a declared subscription television narrowcasting service for the purposes of this clause.

          (6B)  A declaration under subclause (6A) can only be revoked under subclause (9).

             (7)  A declaration under subclause (4) or (6A) is not a legislative instrument.

          (7A)  An approval under subclause (6A) is not a legislative instrument.

             (8)  A copy of a declaration under subclause (4) or (6A) is to be published in the Gazette .

             (9)  If a declaration is in force under subclause (4) or (6A) in relation to a subscription television narrowcasting service, the Minister may, by writing, revoke the declaration.

           (10)  The Minister must not revoke a declaration made under subclause (4) or (6A) unless the Minister is satisfied that the total number of hours of R 18+ programs broadcast by the service during a particular revocation test period is:

                     (a)  zero; or

                     (b)  equal to or less than 35% of the total number of hours of programs broadcast by the service during that period.

For this purpose, a revocation test period is a 7-day period that occurs within the 21-day period that ends at the end of the day before the day on which the Minister revokes the declaration.

           (11)  A revocation under subclause (9) is not a legislative instrument.

           (12)  A copy of a revocation under subclause (9) is to be published in the Gazette .

           (13)  Subclause (9) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

Minister may direct ACMA to make available specified information

           (15)  The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the exercise of a power conferred on the Minister by this clause.

           (16)  The ACMA must comply with a direction under subclause (15).

Pre-broadcast data

        (16A)  For the purposes of this clause and subclause 5(3A), if, before a particular day, a schedule of the programs to be broadcast by a subscription television narrowcasting service on that day is:

                     (a)  made available in an electronic format approved, in writing, by the ACMA in relation to the service; or

                     (b)  made available in a publication approved, in writing, by the ACMA in relation to the service;

those programs are taken to have been broadcast by the service on that day in accordance with that schedule.

Incidental material

        (16B)  For the purposes of this clause and subclause 5(3A), if an item of incidental material is broadcast during a break in a substantive program, the item of incidental material is taken to be a part of the substantive program.

        (16C)  For the purposes of this clause and subclause 5(3A), if one or more items of incidental material are broadcast during the period:

                     (a)  beginning at the end of a particular substantive program (the first substantive program ) broadcast on a subscription television narrowcasting service; and

                     (b)  ending immediately before the start of the next substantive program to be broadcast on the service;

each of those items of incidental material are taken to be a part of the first substantive program.

Definitions

           (17)  In this clause:

declared prescribed area has the same meaning as in the Northern Territory National Emergency Response Act 2007 .

incidental material means:

                     (a)  advertising or sponsorship material (whether or not of a commercial kind); or

                     (b)  a promotion for a television program or a subscription television narrowcasting service; or

                     (c)  community information material or community promotional material; or

                     (d)  a news break or weather bulletin; or

                     (e)  any other similar material.

R 18+ program means:

                     (a)  a program that has been classified R 18+ by the Classification Board; or

                     (b)  a program that has been classified R 18+ by the provider of the subscription television narrowcasting service concerned;

and includes a part of a program covered by paragraph (a) or (b).

substantive program means a program other than incidental material.

13   Some Northern Territory laws excluded

             (1)  The following provisions:

                     (a)  clause 12;

                     (b)  the remaining provisions of this Act in so far as they relate to clause 12;

are intended to apply to the exclusion of a law of the Northern Territory that deals with discrimination so far as that law would otherwise apply.

             (2)  Any acts done under or for the purposes of the provisions of:

                     (a)  clause 12; or

                     (b)  the remaining provisions of this Act in so far as they relate to clause 12;

have effect despite any law of the Northern Territory that deals with discrimination.

             (3)  However, subclauses (1) and (2) do not apply to a law of the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subclauses (1) and (2) do not apply.

             (4)  In this clause, a reference to any acts done includes a reference to any failure to do an act.

14   Northern Territory (Self-Government) Act

                   Section 49 of the Northern Territory (Self-Government) Act 1978 does not apply in relation to the following provisions:

                     (a)  clause 12;

                     (b)  the remaining provisions of this Act in so far as they relate to clause 12.

11  At the end of subclause 24(4) of Schedule 6

Add:

             ; and (f)  subclauses 5(3A), (3B), (3C), (3D) and (10) of Schedule 2 had not been enacted.

Northern Territory National Emergency Response Act 2007

12  Section 3

Insert:

child means a person who is under 18 years of age.

13  Section 3

Insert:

declared prescribed area has the meaning given by section 127B.

14  Section 3

Insert:

R 18+ program has the same meaning as in clause 12 of Schedule 2 to the Broadcasting Services Act 1992 .

15  Section 3

Insert:

subscription television narrowcasting service has the same meaning as in the Broadcasting Services Act 1992 .

16  After Part 7

Insert:

Part 7A R 18+ programs

   

127A   Objects

             (1)  The object of this Part is to define the expression declared prescribed area . That expression is used in clause 12 of Schedule 2 to the Broadcasting Services Act 1992 .

             (2)  The object of this Part, when read together with clause 12 of Schedule 2 to the Broadcasting Services Act 1992 , is to enable special measures to be taken to protect communities from violence and sexual abuse.

Note 1:       Under subclause 12(1) of Schedule 2 to the Broadcasting Services Act 1992 , the provision by a person of a declared subscription television narrowcasting service under a class licence is subject to the condition that the licensee will not provide the service in a way that will enable a subscriber in a declared prescribed area to receive the service.

Note 2:       Clause 12 of Schedule 2 to the Broadcasting Services Act 1992 provides for the declaration of a subscription television narrowcasting service as a declared subscription television narrowcasting service if the total number of hours of R 18+ programs provided by the service exceeds 35% of the total number of hours of programs provided by the service.

127B   Declared prescribed area

             (1)  The Minister may, by legislative instrument, determine that a specified prescribed area is a declared prescribed area for the purposes of this Act.

             (2)  The Minister must not make a determination under subsection (1) in relation to a prescribed area unless the Minister is requested to do so by a person living in the prescribed area.

127C   Community consultation

             (1)  Before making a determination under subsection 127B(1) in relation to a prescribed area, the Minister must ensure that:

                     (a)  information setting out:

                              (i)  the proposal to make the determination; and

                             (ii)  an explanation, in summary form, of the consequences of the making of the determination;

                            has been made available in the prescribed area; and

                     (b)  opportunities have been made available to people in the prescribed area to discuss:

                              (i)  the proposal to make the determination; and

                             (ii)  the consequences of the making of the determination;

                            with employees or officers of the Commonwealth; and

                     (c)  opportunities have been made available to people in the prescribed area to discuss their circumstances, concerns and views with employees or officers of the Commonwealth.

             (2)  A contravention of subsection (1) does not affect the validity of a determination under subsection 127B(1).

127D   Criteria for making a determination

                   In making a determination under subsection 127B(1) in relation to a prescribed area, the Minister must have regard to the following matters:

                     (a)  the well-being of people living in the prescribed area;

                     (b)  whether there is reason to believe that people living in the prescribed area have been the victims of violence or sexual abuse during the preceding 12 months;

                     (c)  the extent to which people living in the prescribed area have, during the preceding 12 months, expressed their concerns about being at risk of violence or sexual abuse;

                     (d)  whether there is reason to believe that children living in the prescribed area have viewed R 18+ programs provided on a subscription television narrowcasting service during the preceding 12 months;

                     (e)  the extent to which people (in particular, women and children) living in the prescribed area have, during the preceding 12 months, expressed the view that their well-being will be improved if R 18+ programs are not provided on subscription television narrowcasting services that are capable of being received in the prescribed area;

                      (f)  such other matters (if any) as the Minister considers relevant.

127E   Duration of determination etc.

             (1)  A determination under subsection 127B(1) comes into force at:

                     (a)  if:

                              (i)  a day is specified in the determination for the purposes of the commencement of the determination; and

                             (ii)  the specified day is not later than the 35th day after the determination was made;

                            the first moment of the specified day; or

                     (b)  in any other case—the first moment of the day next following the day when the determination is registered under the Legislative Instruments Act 2003 .

             (2)  A determination under subsection 127B(1) must specify an expiry date for the determination.

             (3)  An expiry date must occur in the 12-month period beginning when the determination came into force.

             (4)  Subsection (3) has effect subject to subsection (5).

Extension of expiry date

             (5)  The Minister may, by legislative instrument, extend or further extend the expiry date of a specified determination made under subsection 127B(1), so long as the extension or further extension is for a period of not more than 12 months.

Duration of determination

             (6)  Unless sooner revoked, a determination under subsection 127B(1) ceases to be in force on the expiry date of the determination.

Fresh determination

             (7)  If a determination under subsection 127B(1) expires, this Act does not prevent the Minister from making a fresh determination under subsection 127B(1) relating to the same prescribed area as the expired determination.

127F   Revocation of determination

             (1)  If a determination is in force under subsection 127B(1), the Minister may, by legislative instrument, revoke the determination.

             (2)  Subsection (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

17  Subsections 132(1) and (2)

After “this Act”, insert “(other than Part 7A)”.