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Communications and Tourism Legislation Amendment Bill 1995



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House: Senate

Portfolio: Communications and the Arts

Commencement: Sections 1, 2 and 8 commence on Royal Assent and the remaining provisions commence on the 28th day after the day of Royal Assent.

Purpose

The Explanatory Memorandum 49 states that the Bill is to make amendments of a minor policy or technical nature to the Australian Tourist Commission Act 1987, the Australian Tourist Commission (Transitional Provisions) Act 1987, the Broadcasting Services Act 1992, the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992and the Radiocommunications Act 1992. There is no common theme to the amendments.

Background

The Australian Tourist Commission Act 1987 established the Australian Tourist Commission (the ATC) as a statutory authority which reports directly to the Minister for Tourism. The objectives of the ATC are to increase the number of visitors to Australia from overseas; to maximise the benefits to Australia from overseas visitors; and to ensure Australia is protected from adverse environmental and social impacts of international tourism. The ATC has a head office in Sydney and nine overseas offices (Auckland, Frankfurt, London, Los Angeles, New York, Tokyo, Osaka, Singapore and Hong Kong). Tourism is a major contributor to national economic growth and increases employment opportunities within Australia.

The Broadcasting Services Act 1992 commenced on 5 October 1992, replacing the Broadcasting Act 1942. It established the Australian Broadcasting Authority (replacing the Australian Broadcasting Tribunal) as a body corporate and allocated it a variety of functions, including the allocation of both television and radio broadcasting licences, the development and monitoring of codes of practice and the investigation of complaints. When introduced the Broadcasting Services Act 1992 was immediately the subject of a High Court challenge in the case of Australian Capital Television Pty Ltd v The Commonwealth (the "Political Ads" case). In that case, the High Court found the provisions of Part IIID of the Broadcasting Services Act 1992 to be invalid.

The Radiocommunications Act 1992 (the Radcom Act) came into force on 1 July 1993. It covers radio frequency planning, standards, spectrum plans and licences, apparatus and class licences. The Radcom Act also established the Spectrum Management Agency (the SMA) which conducts the management of the radiofrequency spectrum including administering licences for users. In December 1993, the SMA held a public inquiry and one of the outcomes of that inquiry was the introduction of a legislation package offering greater scope for flexibility in the payment of transmitter, receiver and licence fees 50 .

Main Provisions

Australian Tourist Commission Act 1987

Section 14 of the Australian Tourist Commission Act 1987 deals with the terms of appointment of members of the Australian Tourist Commission Board of Directors. The repeal of s14(3) removes an anomaly created by the previous amendment to the legislation. The previous amendment (introduced by the Arts, Sport, Tourism and Territories Legislation Amendment Act (No 2) 1991) removed the age restriction of 65 years for the appointment and the continuation of appointment of non- executive statutory office holders. However, s14(3), which provides for compulsory ceasing of office at age 65, was not amended. This created an anomaly.

Section 33 (2), of the Australian Tourist Commission Act 1987 , which provides that "the Managing Director ceases to hold office on attaining 65" has not been repealed.

The second amendment is the removal of section 42(3) which prevents a person being employed on more favourable terms than the Managing Director. In the second reading speech 51 it is explained that this provision creates an anomaly with some employees in overseas offices. The high cost of living in those countries results in the employees sometimes being paid higher wages that the Australian dollar equivalent paid to the Managing Director. The Bill will remove this requirement allowing persons employed in overseas offices to be paid proportionally to the cost of living.

Australian Tourist Commission (Transitional Provisions) Act 1987

The Second Reading Speech stated that the Australian Tourist Commission (Transitional Provisions) Act 1987 was designed to protect pre- existing contractual arrangements when the new Australian Tourist Commission was established. The Act also provided for the continuing appointment of the Managing Director of the ATC and the repeal of other legislation (the Australian Tourist Commission Act 1967; Australian Tourist Commission Act 1974; and the Australian Tourist Commission Amendment Act 1981) . Its provisions are now redundant and consequently the whole Act is repealed.

Broadcasting Services Act 1992

The introduction of the new s38A allows the Australian Broadcasting Authority (the ABA) to grant permission to a commercial television broadcasting licensee to operate a second service in the same licence area. If the ABA does give permission then it is also required to allocate an additional licence to the licensee. The minimum period that the licensee may provide the additional services is two years and the original services must also continue for two years. The ABA may determine the level of the fee. There is no maximum level of fee set other than reference to the fact that the fee must not exceed, in the opinion of the ABA, the costs incurred in allocating the additional licence. This is somewhat uncertain but ultimately any decisions about the level of fees would be reviewable by the Administrative Appeals Tribunal. The Australian Broadcasting Authority Annual Report for 1993- 1994 states that $129, 479, 584 was received in licence fees for the collection year.

The insertion of this new section 38A creates an exception to the rules in sections 53(2) and 55 which prevented a person exercising control or being a director of a company exercising control of more than one commercial television broadcasting licence in the same area. The explanatory memorandum states that the exemption from s53 (2) and s55 "only lasts for the period that the permission is in force". After that the licence has to be transferred, surrendered or an extension obtained.

Section 73 of the Broadcasting Services Act 1992 deals with the breach of television ownership limits in small markets. Small markets are those where there is only one licence holder. Generally, rural areas are small markets. Section 73 used to allow persons already holding one licence to be granted a second licence. They needed to apply in writing to the ABA to extend the original period of the licence. As long as the written application was received more than 45 days prior to the expiration of the licence period then the ABA could extend or reject the application. If the ABA did nothing within the 45 days, it was taken to have extended the original period of the licence. This procedure has now been amended to create two exceptions to this 45 day rule as follows:

(1) if the ABA had been in receipt of other applications for the allocation of commercial television licences in that area; or

(2) if an application (for another commercial television licence) is received within the 45 days.

The effect of these exceptions is that the clock stops running until all the applications have been determined. Similarly, a new exception has been added in s74 (8) whereby the 45 day "clock" stops running if the ABA advertises for applications in the licence area. If the ABA allocates a licence to another entity then the original application (for a second licence in the same area) is taken to have been withdrawn (s 74(10)).

Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992

The second reading speech states that this Bill removes :

"the Minister's power to vary or revoke or impose further conditions on transmitter licences, which were formerly licence warrants or retransmission permits granted under the Broadcasting Act 1942 and which continue in force..."

Section 10(10) of the Act which gave the Minister these powers will be repealed and a new section substituted. The new s10(10) gives the power to vary, revoke or impose further conditions on transmitter licences to the ABA. The new s10(10A) gives the same powers to the SMA (ie to vary, revoke etc) in relation to licences continued under the Radcom Act. The Explanatory Memorandum at p12 explains that:

"It is considered more in keeping with the general scheme of the Broadcasting Services Act and the Radiocommunications Act for the ABA and the SMA to have the relevant powers to affect the conditions of these transmitter licences."

The new s10(10B) allows the ABA to, in writing, delegate the above powers to vary, revoke or impose conditions to members, associate members or members of the staff of the ABA. Under the new s10(10C) the SMA is able to delegate its powers in relation to licences continued under the Radcom Act to the ABA. s10(10D) allows the ABA to then delegate those same powers to its members, associate members or members of the staff.

Minor amendments to s10(11) and s16(2) are consequential on the above changes.

Section 28(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 is amended so that the surviving provisions, relating to political broadcasting, of the Broadcasting Act 1942 are repealed. This is consistent with the High Court decision in Australian Capital Television Pty Ltd v The Commonwealth where it was held that the political broadcasting provisions in Part IIID of the Broadcasting Act 1942 were invalid.

Radiocommunications Act 1992

The current provisions of this Act allow the SMA to determine a writing price- based allocation system for the issuing of specified transmitter licences. The insertion of s106(1A) will allow the SMA to limit the eligibility of applicants to those persons who are already authorised under the Act or under other legislation to operate/provide the services. The example provided in the explanatory memorandum demonstrates how eligibility can be limited.

That is where:-

"under a frequency band plan made under subsection 32(1) of the Act, part of the spectrum is reserved for particular telecommunications services for which a licence is required under the Telecommunications Act 1991. New subsection 106(1A) will enable the SMA to limit the applicants under the price- based allocation system to those licensees or persons eligible to be licensees or both."

Offences

Offences under the current Act include using a transmitter in such a way that the safe operation of an aircraft or vessel is prejudiced or that interferes with the radiocommunications carried on by certain emergency services (eg the Royal Flying Doctor Service, the Police etc). The changes to section 277 increase the powers of an inspector to conduct emergency searches and seizures of offending transmitters. The Bill gives the power to inspectors to act if there is an offending transmitter operating on "any land, or on or in any premises, vessel aircraft or vehicle". The previous section only allowed them to act if they had reasonable grounds for believing that an offending transmitter was being used but now they can act if they have reasonable grounds for believing that an offending transmitter was operating. The amendments also give inspectors increased powers to take such action as is necessary to cause the offending transmitter to either cease operating or cease operating in a way that causes the offences outlined above.

The Explanatory Memorandum states at p15 that the power of inspectors : "may only be exercised in circumstances of such seriousness and urgency as to require and justify entry without the authority of a court order or warrant".

Endnotes

1. Page 2 of the Explanatory Memorandum.

2. See Bills Digest No. 31 of 1995 ( Radiocommunications (Receiver Licence Tax) Amendment Bill 1994) by Natasha Cica for a detailed background discussion.

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3.

The Hon. Senator R. Crowley, Communications and Tourism Legislation Amendment Bill 1995, Second Reading, Senate, Hansard 29 March 1995, p2440

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Susan Downing (06 277 2784)

Bills Digest Service

Parliamentary Research Service

14 August 1995

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, .

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