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1998-1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
BROADCASTING
SERVICES AMENDMENT BILL 2000
REVISED EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Communications, Information Technology and the
Arts, Senator the Hon Richard Alston)
(THIS MEMORANDUM
TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS
INTRODUCED)
ISBN: 0642 453772
BROADCASTING SERVICES AMENDMENT BILL
2000
OUTLINE
The Broadcasting Services Amendment Bill 2000 (the Bill) makes amendments to
the Broadcasting Services Act 1992 (BSA), the Radiocommunications Act
1992 (RA) and a minor amendment to the Administrative Decisions (Judicial
Review) Act 1977 (AD(JR) Act).
The Bill contains a new scheme for
the regulation of international broadcasting services that are transmitted from
Australia. The scheme is being introduced because there is currently no
regulatory regime in relation to international broadcasting from Australia. The
Bill enables the Minister for Foreign Affairs to determine whether an
international broadcasting service is likely to be contrary to the national
interest. In determining this, the Minister for Foreign Affairs will have
regard in particular to the likely effect of the service on Australia’s
international relations.
The amendments to the BSA establish a scheme
for the regulation of international broadcasting and make the necessary
consequential amendments to the BSA. Proposed Part 8B of the BSA requires an
Australian company who wishes to provide an international broadcasting service
to apply to the Australian Broadcasting Authority (ABA) for an international
broadcasting licence. If the ABA verifies the applicant's corporate status and
does not find the applicant to be unsuitable, the ABA must refer the application
to the Minister for Foreign Affairs, who will make a national interest
assessment as to whether the proposed international broadcasting service is
likely to be contrary to the national interest.
The Minister for Foreign
Affairs may direct the ABA not to allocate a licence to an applicant if, in the
opinion of the Minister for Foreign Affairs, the proposed service is likely to
be contrary to the national interest. Alternatively, if he or she has no
objection to the allocation of the licence as a result of the national interest
assessment, the Minister for Foreign Affairs must direct the ABA to allocate the
licence.
Division 3 of new Part 8B sets out the licence conditions for
international broadcasting licences. These conditions all deal with keeping
records of broadcasts, and providing such records to the ABA as
requested.
Division 4 of new Part 8B includes the prohibition on
providing an international broadcasting service without a licence, and provides
for the ABA to issue a notice to a person who is providing an unlicensed
international broadcasting service directing the person to cease to provide the
service. Division 4 also contains an offence for breach of conditions of an
international broadcasting licence, and empowers the ABA to cancel an
international broadcasting licence if an international broadcasting licensee has
not commenced to provide a service 2 years after the licence was allocated. In
addition, the Minister for Foreign Affairs may, if he or she is of the opinion
that a service is contrary to the national interest, direct the ABA to do one of
the following things: give a formal warning to the licensee, suspend the
licence, or cancel the licence.
After introduction in the House, the Bill
was referred to the Senate Foreign Affairs, Defence and Trade Legislation
Committee. In its report on the Bill the Committee made three recommendations.
The recommendations were accepted by the Government and implemented by
amendments moved by the Government in the House.
Division 4A of new
Part 8B provides for the nominated broadcaster declaration scheme. This scheme
implements the third of the Committee’s three recommendations. The 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.
Division 5 of new Part 8B provides for the ABA to assist the
Minister for Foreign Affairs by preparing a report about whether a specified
international broadcasting service complies with the international broadcasting
guidelines that will be developed by the ABA, and by obtaining records of
broadcasts from an international broadcasting licensee.
Division 6 of new
Part 8B provides the power for the ABA to formulate international broadcasting
guidelines. To implement the Committee’s first recommendation, the Bill
was amended so that international broadcasting guidelines will be disallowable
instruments.
Division 6 also requires 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. This implements the Committee’s second
recommendation.
The Bill also makes a number of amendments to the
Radiocommunications Act 1992 (RA). These amendments ensure that a
transmitter licence authorising operation of a transmitter for transmitting an
international broadcasting service may only be issued by the Australian
Communications Authority (ACA) if there is in force an international
broadcasting licence allocated by the ABA under the BSA.
The amendments
to the RA also require the ACA to cancel a transmitter licence that authorises
use of a transmitter to transmit an international broadcasting service where
each international broadcasting licence that authorised the provision of an
international broadcasting service has been cancelled by the ABA or surrendered
to the ABA.
The Bill also amends 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.
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.
Accordingly, 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.
The Bill also contains a minor amendment to the
Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) so that
decisions of the Minister for Foreign Affairs in relation to the proposed new
international broadcasting scheme are not subject to the requirement in the
AD(JR) Act to provide a statement of reasons. However, if a statement of
reasons is not given under the AD(JR) Act, the Minister for Foreign Affairs must
table a statement about the decision in Parliament.
FINANCIAL IMPACT STATEMENT
A person who makes an application to the ABA for an international
broadcasting licence will be required to pay a fee to the ABA. The fee will be
determined by the ABA. Under section 207 of the BSA, the fee must be calculated
on a cost-recovery basis.
A person who applies to the ACA for a licence
to operate a radiocommunications transmitter to transmit an international
broadcasting service will be required to pay an application fee determined by
the ACA. Under section 53 of the Australian Communications Authority Act
1997, the fee must be calculated on a cost-recovery basis. In addition, a
radiocommunications transmitter licence tax is required to be paid annually.
The amount of this tax is determined by the ACA under the Radiocommunications
(Transmitter Licence Tax) Act 1983.
AD(JR) Act: Administrative Decisions (Judicial Review) Act 1977
Clause 1 provides for the Act to be cited as the Broadcasting Services
Amendment Act (No.4) 1999.
Clause 2 provides for the Act to commence on the day on which it receives
the Royal Assent.
Clause 3 provides that each Act that is specified in a Schedule is amended as
set out in applicable items in the Schedule.
Part 1 - Amendments
Administrative Decisions
(Judicial Review) Act 1977
Item 1 – Proposed amendment
of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977
Item 1 adds a new paragraph (zc) to the end of Schedule 2 of the
AD(JR) Act. Schedule 2 of the AD(JR) Act sets out administrative decisions in
Commonwealth legislation that are not subject to the requirement in section 13
of the Act that a decision maker provide a statement of reasons to a person who
requests a statement of reasons under the AD(JR) Act.
The item has the
effect that decisions of the Minister for Foreign Affairs under proposed Part 8B
of the BSA, which deals with international broadcasting services, are not
decisions in relation to which the Minister for Foreign Affairs is required to
provide a statement of reasons.
Under proposed Part 8B of the BSA, the
Minister for Foreign Affairs may make the following decisions:
(a) that
he or she is of the opinion that an application for an international
broadcasting licence should be refused because the proposed service is likely to
be contrary to Australia's national interest;
(b) that he or she is of
the opinion that a formal warning should be given to a licensee of an
international broadcasting service because the service is contrary to
Australia's national interest;
(c) that he or she is of the opinion that
a licensed international broadcasting service should be suspended because the
service is contrary to Australia's national interest; or
(d) that he or
she is of the opinion that a licensed international broadcasting service should
be cancelled because the service is contrary to Australia's national
interest.
The nature of these decisions is such that exposure of the
reasons for the decisions could itself be contrary to Australia's national
interest. For this reason, the Minister for Foreign Affairs is not required to
provide a statement of reasons under section 13 of the AD(JR)
Act.
Broadcasting Services Act 1992
Item 2
– Proposed amendment of the Broadcasting Services Act 1992 to
insert a new paragraph 3(1)(ja)
Item 2 inserts a new paragraph
3(1)(ja) into the BSA so that the objects of the BSA include ensuring that
international broadcasting services are not provided contrary to Australia's
national interest.
Item 3 - Proposed amendment of the Broadcasting
Services Act 1992 to insert a new subsection 4(3A)
This item
inserts a new subsection 4(3A) into the BSA which provides that the regulatory
policy set out in section 4 of the BSA does not apply to Part 8B of the BSA
which deals with international broadcasting services.
Item 4 -
Proposed amendment of subsection 6(1) of the Broadcasting Services Act 1992
to insert a definition of international broadcasting
guidelines
Item 4 inserts a definition of international
broadcasting guidelines into section 6, the interpretation section of
the BSA.
Item 5 - Proposed amendment of subsection 6(1) of the Broadcasting
Services Act 1992 to insert a definition of international broadcasting
licence
Item 5 inserts a definition of international
broadcasting licence into section 6, the interpretation section
of the BSA.
Item 6 - Proposed amendment of subsection 6(1) of the
Broadcasting Services Act 1992 to insert a definition of international
broadcasting service
Item 6 inserts a definition of
international broadcasting service into section 6, the
interpretation section of the BSA. The term international broadcasting
service has the meaning given by proposed new section 18A.
Item 7 - Proposed amendment of subsection 6(1) of the Broadcasting
Services Act 1992 to insert a definition of Minister for Foreign
Affairs
Item 7 inserts a definition of Minister for Foreign
Affairs into section 6, the interpretation section of the
BSA.
Item 8 – Proposed amendment of the Broadcasting Services
Act 1992 to insert a new paragraph 11(fa)
Item 8 inserts into
section 11 of the BSA a new paragraph (fa), which provides that international
broadcasting services are one of the categories of broadcasting services under
the BSA.
Item 9 – Proposed amendment of the Broadcasting
Services Act 1992 to insert a new section 11A
Item 9 inserts into
the BSA a new section 11A (Dual categorisation of broadcasting services), which
provides that an international broadcasting service may also fall into another
category of broadcasting services.
New section 11A has been included to
make it clear that a broadcasting service may be both an international
broadcasting service, as defined in new section 18A, and another kind of
broadcasting service. This clarification is necessary as the current categories
of broadcasting service in section 11 are intended to be mutually exclusive. An
international broadcasting service may also fall into another category of
broadcasting service where it is not only delivered to an audience outside
Australia, but is also delivered to persons in Australia.
Item 10 -
Proposed amendment of subsection 12(1) of the Broadcasting Services Act 1992
Item 10 proposes to amend subsection 12(1) of the BSA to reflect
that the method of regulating international broadcasting services is through
individual licences which are allocated by the Australian Broadcasting Authority
(ABA). Currently, commercial broadcasting services, community broadcasting
services and subscription television broadcasting services all require
individual licences allocated by the ABA. Applicants for individual licences
are subject to a suitability test as part of the application process. In
contrast, subscription radio broadcasting and subscription narrowcasting
services, and open narrowcasting services are provided under class licences. A
class licence contains conditions with which the person providing a service must
comply. However, a person need not apply for a class licence. National
broadcasting services are a category of broadcasting services, but are not
regulated by either individual or class licences.
Item 11 - Proposed
amendment of section 12 of the Broadcasting Services Act 1992
Item 11 adds new subsections 12(3), 12(4), 12(5) and 12(6) to
the BSA which deal with licensing of international broadcasting services where
the broadcasting service falls into the category of an international
broadcasting service and another category of broadcasting service. Item 11
complements the proposed amendments at items 9 and 12.
New subsection
12(3) provides that an international broadcasting service that also falls into
the category of commercial broadcasting services requires both an international
broadcasting licence and either a commercial radio broadcasting licence or a
commercial television broadcasting licence.
A service would be an
international broadcasting service if it is a service of the kind which is
described in new section 18A of the BSA. New section 18A provides that, subject
to certain exceptions, international broadcasting services are services
targeted, to a significant extent, to audiences outside Australia, where the
means of delivery of the service involves the use of a transmitter in Australia.
A service is a commercial broadcasting service if it is a service of the kind
described in section 14 of the Act. As a result of paragraph 21(b) of the
AIA, references to the "general public" in section 14 mean the general
public in Australia. Paragraph 21(b) of the AIA provides, among other things,
that unless the contrary intention appears, references to localities,
jurisdictions and other matters and things shall be construed as references to
localities, jurisdictions and other matters and things in and of the
Commonwealth.
New subsection 12(4) provides that an international
broadcasting service that also falls into the category of community broadcasting
services requires both an international broadcasting licence and a community
broadcasting licence.
A service would be an international broadcasting
service if it is a service of the kind which is described in new section 18A of
the BSA. New section 18A provides that, subject to certain exceptions,
international broadcasting services are services targeted, to a significant
extent, to audiences outside Australia, where the means of delivery of the
service involves the use of a transmitter in Australia. A service is a
community broadcasting service if it is a service of the kind described in
section 15 of the Act. Section 15 of the Act provides that, among other things,
community broadcasting services are services that provide programs that are made
available free to the general public. As a result of paragraph 21(b) of the
AIA, references to the "general public" in section 15 mean the general
public in Australia. Paragraph 21(b) of the AIA provides, among other things,
that unless the contrary intention appears, references to localities,
jurisdictions and other matters and things shall be construed as references to
localities, jurisdictions and other matters and things in and of the
Commonwealth.
New subsection 12(5) provides that an international
broadcasting service that also falls into the category of subscription
television broadcasting services requires both an international broadcasting
licence and a subscription television broadcasting licence.
A service
would be an international broadcasting service if it is a service of the kind
which is described in new section 18A of the BSA. New section 18A provides
that, subject to certain exceptions, international broadcasting services are
services targeted, to a significant extent, to audiences outside Australia,
where the means of delivery of the service involves the use of a transmitter in
Australia. A service is a subscription television broadcasting service if it is
a television service of the kind described in section 16 of the Act. Section 16
of the Act provides that, among other things, subscription broadcasting services
are services that provide programs that appear intended to appeal to the general
public, and are made available to the general public on payment of subscription
fees. As a result of paragraph 21(b) of the AIA, references to the
"general public" in section 16 mean the general public in Australia. Paragraph
21(b) of the AIA provides, among other things, that unless the contrary
intention appears, references to localities, jurisdictions and other matters and
things shall be construed as references to localities, jurisdictions and other
matters and things in and of the Commonwealth.
New subsection 12(6)
provides that, where an international broadcasting service also falls into the
category of broadcasting services covered by subsection 12(2) of the BSA, the
service requires an international broadcasting licence and is to be provided
under the relevant class licence. The categories of broadcasting services
covered by subsection 12(2) of the BSA are subscription radio broadcasting and
subscription narrowcasting services and open narrowcasting services. These are
all services that are provided under class licences.
A service would be
an international broadcasting service if it is a service of the kind which is
described in new section 18A of the BSA. New section 18A provides that, subject
to certain exceptions, international broadcasting services are services
targeted, to a significant extent, to audiences outside Australia, where the
means of delivery of the service involves the use of a transmitter in
Australia.
A service is a subscription radio broadcasting service if it
is a radio service of the kind described in section 16 of the Act. Section 16
of the Act provides that, among other things, subscription broadcasting services
are services that provide programs that appear intended to appeal to the general
public, and are made available to the general public on payment of subscription
fees. As a result of paragraph 21(b) of the AIA, references to the
"general public" in section 16 mean the general public in Australia. Paragraph
21(b) of the AIA provides, among other things, that unless the contrary
intention appears, references to localities, jurisdictions and other matters and
things shall be construed as references to localities, jurisdictions and other
matters and things in and of the Commonwealth.
A service is a
subscription narrowcasting service or an open narrowcasting service if, among
other things, its reception is limited for various reasons. As a result of
paragraph 21(b) of the AIA, references to “reception” in
sections 17 and 18 of the BSA means reception in Australia. Paragraph 21(b) of
the AIA provides, among other things, that unless the contrary intention
appears, references to localities, jurisdictions and other matters and things
shall be construed as references to localities, jurisdictions and other matters
and things in and of the Commonwealth.
It is intended that no second
licence and no class licence requirements apply where an international
broadcasting service is received wholly outside Australia.
Item 12 - Proposed amendment of the Broadcasting Services Act 1992
to insert a new section 18A
Item 12 inserts a new section 18A
into the BSA that sets out when a service would be an international broadcasting
service.
New subsection 18A(1) provides that international broadcasting
services are services targeted, to a significant extent, to audiences outside
Australia, where:
(a) the means of delivery of the service involves the
use of a radiocommunications transmitter in Australia; and
(b) the
services comply with any determinations or clarifications by the ABA under
section 19 of the BSA.
The proposed provision is intended to ensure that
only those broadcasting services that are targeted to an audience outside
Australia and transmitted from Australia, and not those services that are
fortuitously received outside Australia, will be subject to regulation under the
BSA as international broadcasting services.
The reference to use of a
radiocommunications transmitter in Australia is limited to use of a
radiocommunications transmitter in Australia in the normal geographical sense of
Australia (as modified by the definition in new subsection 18A(5)). It does not
extend to the use of a radiocommunications transmitter on a satellite which,
under regulations made under the RA, is an Australian
satellite. While section 16 of the RA provides that the RA
applies outside Australia in relation to Australian satellites, the BSA does not
extend outside Australia.
New subsection 18A(2) provides that a
broadcasting service is not an international broadcasting service if the service
is provided either by the Australian Broadcasting Corporation (ABC) in
accordance with section 6 of the Australian Broadcasting Corporation Act
1983 or by the Special Broadcasting Service Corporation (SBS) in accordance
with section 6 of the Special Broadcasting Corporation Act 1991; or is an
exempt broadcasting service. The effect of this new provision is that
ABC and SBS Charter services and broadcasting services of the kind set out in
new subsection 18A(3) are not international broadcasting services for the
purposes of the BSA.
New subsection 18A(3) provides that a broadcasting
service is an exempt broadcasting service if all of the following conditions
apply:
(a) the service delivers only programs packaged outside Australia;
and
(b) all relevant programming decisions are made outside Australia;
and
(c) the service is transmitted from a place outside Australia to an
earth station in Australia for the sole purpose of being immediately
re-transmitted to a satellite; and
(d) the satellite is a means of
delivering the service.
New subsection 18A(3) is intended to remove from
the regulation of the BSA all satellite pass-through broadcasting services where
all of the packaging of programs and all of the programming decisions are made
outside Australia. An example of such a service would be a television service
which comprises programs packaged in the United States, where all the
programming decisions are made in the United States, that is transmitted to an
earth station in Australia by satellite or cable and is immediately
re-transmitted to a satellite which delivers the television service to
Indonesia. This exemption is intended to ensure that the amendments do not
affect any commercial proposals to make Australia a programming up-link hub for
broadcasting services delivered by satellite.
New subsection 18A(4)
provides that the references to localities in new section 18A are not intended
to affect the application of paragraph 21(b) of the AIA and section 10 of the
BSA to a provision of the BSA that deals with a category of broadcasting
services other than international broadcasting services. Paragraph 21(b) of the
AIA provides, among other things, that unless the contrary intention appears,
references to localities, jurisdictions and other matters and things shall be
construed as references to localities, jurisdictions and other matters and
things in and of the Commonwealth. Section 10 of the BSA provides that the BSA
extends to all external territories.
New subsection 18A(4) is included to
ensure that it is clear that the references to localities outside Australia in
new subsection 18A(3) does not displace the general rule of interpretation in
paragraph 21(b) of the AIA, or the rule in section 10 of the BSA.
New
subsection 18A(5) provides that, in section 18A, Australia
includes the external territories, and radiocommunications
transmitter has the same meaning as in the Radiocommunications
Act 1992. There is a definition of radiocommunications
transmitter at subsection 7(2) of that Act.
Item 13 -
Proposed amendment of paragraphs 19(1)(a) and (b) of the Broadcasting
Services Act 1992
Item 13 is a proposed amendment to include
references to new section 18A in paragraphs 19(1)(a) and (b). The effect of
the item is that the ABA will have the power, by notice in the Gazette,
to determine additional criteria to those specified in section 18A, or clarify
the criteria specified in section 18A, for the purposes of distinguishing
between categories of broadcasting services. New section 18A sets out the
criteria for an international broadcasting service.
Item 14 - Proposed
amendment of subsection 21(1) of the Broadcasting Services Act 1992
Item 14 is a minor amendment consequential upon the proposed
amendment at item 9, which provides that an international broadcasting service
may also fall into another category of broadcasting services.
Item 15
- Proposed amendment of subsection 21(2) of the Broadcasting Services Act
1992
Item 15 is a minor amendment consequential upon the proposed
amendment at item 9, which provides that an international broadcasting service
may also fall into another category of broadcasting services.
Item 16
- Proposed amendment of subsection 21(4) of the Broadcasting Services Act
1992
Item 16 is a minor amendment consequential upon the
proposed amendment at item 9, which provides that an international broadcasting
service may also fall into another category of broadcasting
services.
Item 17 - Proposed amendment of paragraph 21(5)(a) of the
Broadcasting Services Act 1992
Item 17 is a minor amendment
consequential upon the proposed amendment at item 9, which provides that an
international broadcasting service may also fall into another category of
broadcasting services.
Item 18 - Proposed amendment of paragraph
21(5)(b) of the Broadcasting Services Act 1992
Item 18 is a
minor amendment consequential upon the proposed amendment at item 9, which
provides that an international broadcasting service may also fall into another
category of broadcasting services.
Item 19 - Proposed amendment of
paragraph 21(5)(b) of the Broadcasting Services Act 1992
Item
19 is a minor amendment consequential upon the proposed amendment at item 9,
which provides that an international broadcasting service may also fall into
another category of broadcasting services.
Item 20 - Proposed
amendment of subsection 21(6) of the Broadcasting Services Act 1992
Item 20 is a minor amendment consequential upon the proposed
amendment at item 9, which provides that an international broadcasting service
may also fall into another category of broadcasting services.
Item 21
- Proposed amendment of the Broadcasting Services Act 1992 to insert new
subsections 21(8) and 21(9)
This item proposes to add new subsections
21(8) and 21(9) to the BSA.
New subsection 21(8) provides that the ABA
must not give an opinion under section 21 that a particular broadcasting service
falls into more than one category of broadcasting service unless one of the
categories is international broadcasting services.
New subsection 21(9)
provides that a person must not, in an application to the ABA for an opinion as
to which category of broadcasting services a broadcasting service falls into,
state an opinion that a broadcasting service falls into more than one category
of broadcasting services, unless one of the categories is international
broadcasting services. This provision has been included because subsection
21(6) of the Act provides that if the ABA does not give an opinion under section
21 within 45 days, the ABA will be taken to have given the opinion that accords
with the applicant’s opinion.
Item 22 - Proposed amendment of
the Broadcasting Services Act 1992 to insert a new Part 8B before Part
9
Item 22 inserts a new Part 8B into the BSA that deals with
international broadcasting licences.
Part 8B - International
broadcasting licences
Division 1 - Introduction
Proposed new section 121F of the Broadcasting Services Act
1992 - Simplified outline
New section 121F sets out a simplified
outline of proposed new Part 8B of the BSA.
Proposed new section
121FAA of the Broadcasting Services Act 1992 –
Definitions
New section 121FAA inserts definitions of terms used in
the nominated broadcaster declaration scheme. That scheme is in new Division 4A
of Part 8A – see below.
Division 2 - Allocation of
international broadcasting licences
Proposed new section 121FA of
the Broadcasting Services Act 1992 - Application for international
broadcasting licence
New section 121FA provides for an application to
be made to the ABA for an international broadcasting licence either by the
broadcaster concerned, or (under the nominated broadcaster declaration scheme)
by a transmission provider on behalf of the broadcaster.
New subsection
121FA(1) provides that a person may apply to the ABA for a licence to provide an
international broadcasting service if no nominated broadcaster declaration is in
force in relation to that service.
New subsection 121FA(1A) provides
that 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, on behalf of the content provider, 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.
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.
A licence
application must be in accordance with a form approved in writing by the ABA,
and accompanied by the application fee determined in writing by the ABA
(subsection 121FA(2)).
Proposed new section 121FB of the
Broadcasting Services Act 1992 - Corporate status and
suitability
New section 121FB sets out the corporate status and
suitability requirements that must be satisfied by an applicant for an
international broadcasting licence.
Consideration of the corporate status
and suitability of an applicant for an international broadcasting licence by the
ABA is not intended to preclude general corporate status and suitability issues
from being considered in the context of Australia’s national interest
under new Part 8B of the BSA.
Subsections 121FB(1) to (4) apply if the
licence application is made by the content provider under subsection 121FA(1).
The effect of subsections (1) to (4) is that there are two preconditions that an
applicant for an international broadcasting licence must meet before the
application is referred to the Minister for Foreign Affairs for the national
interest assessment. An applicant must be a company formed in Australia and not
be an unsuitable applicant under new section 121FC. If the applicant does not
meet these preconditions, the ABA must refuse to allocate the licence and inform
the applicant in writing.
Subsection 121FB(1) provides that, if the ABA
is satisfied that an applicant under subsection 121FA(1) for an international
broadcasting licence is company that is formed in Australia, and does not decide
that the applicant is an unsuitable applicant under new section 121FC, the ABA
must refer the application to the Minister for Foreign Affairs and give the
Minister a report about whether the proposed international broadcasting service
complies with the international broadcasting guidelines. The international
broadcasting guidelines are guidelines that will be developed by the ABA in
consultation with the Minister for Foreign Affairs. The guidelines will be
subject to disallowance by the Parliament (see the notes on new section 121FP
below).
Subsection 121FB(2) provides that if the ABA is not satisfied
that an applicant under subsection 121FA(1) for an international broadcasting
licence is a company that is formed in Australia, or decides that the applicant
is an unsuitable applicant under new section 121FC, the ABA must refuse to
allocate an international broadcasting licence to the applicant.
Subsection 121FB(3) provides that, if under subsection 121FB(2), the ABA
refuses to allocate an international broadcasting licence to an applicant, the
ABA must give written notice of the refusal to the applicant.
Subsection
121FB(4) requires the ABA to make reasonable efforts to either refer the
application to the Minister for Foreign Affairs under subsection (1), or refuse
to allocate the licence, within 30 days.
Subsections 121FB(5) to (8)
apply if the licence application is made under subsection 121FA(1A) by the
holder of a nominated broadcaster declaration on behalf of a content provider.
(Under subsection 121FA(1A), the content provider is taken to be the applicant
for the international broadcasting licence.)
The effect of subsections
121FB(5) to (8) is that there where a nominated broadcaster applies on behalf of
a content provider for an international broadcasting licence, there are two
preconditions that an applicant for an international broadcasting licence must
meet before the application is referred to the Minister for Foreign Affairs for
the national interest assessment. An applicant must be a company (which need
not be formed in Australia) and not be an unsuitable applicant under new section
121FC. If the applicant does not meet these preconditions, the ABA must refuse
to allocate the licence and inform the applicant in writing.
Subsection
121FB(5) provides that, if the ABA is satisfied that an applicant under
subsection 121FA(1A) for an international broadcasting licence is company that
is formed in Australia, and does not decide that the applicant is an unsuitable
applicant under new section 121FC, the ABA must refer the application to the
Minister for Foreign Affairs and give the Minister a report about whether the
proposed international broadcasting service complies with the international
broadcasting guidelines.
Subsection 121FB(6) provides that if the ABA
is not satisfied that an applicant under subsection 121FA(1A) for an
international broadcasting licence is a company that is formed in Australia, or
decides that the applicant is an unsuitable applicant under new section 121FC,
the ABA must refuse to allocate an international broadcasting licence to the
applicant.
Subsection 121FB(7) provides that, if under subsection
121FB(6), the ABA refuses to allocate an international broadcasting licence to
an applicant, the ABA must give written notice of the refusal to the applicant
and the holder of the nominated broadcaster declaration concerned.
Subsection 121FB(8) requires the ABA to make reasonable efforts to
either refer the application to the Minister for Foreign Affairs under
subsection (5), or refuse to allocate the licence, within 30 days.
Proposed new section 121FC of the Broadcasting Services Act 1992
- Unsuitable applicant
New section 121FC deals with when an
applicant is an unsuitable applicant.
New subsection 121FC(1) provides
that the ABA may decide that an applicant is an unsuitable applicant if it is
satisfied that allowing a particular company to provide an international
broadcasting service under an international broadcasting licence would lead to a
significant risk of either an offence against the Act or any regulations under
the Act, or a breach of the licence conditions.
New subsection 121FC(2)
sets out the factors that the ABA is to take into account in deciding whether
there exists a significant risk of either an offence against the Act or any
regulations under the Act or a breach of the licence conditions. These factors
include factors relevant to the company and persons in a position to control the
company.
The effect of new section 121FC is that the ABA must form a
view as to whether the applicant is an unsuitable applicant, having regard to
the factors in subsection 121FC(2). These factors are the same factors that the
ABA is required to take into account in the application process for commercial,
community or subscription television broadcasting licences.
Proposed
new section 121FD of the Broadcasting Services Act 1992 - Australia's
national interest
New section 121FD sets out the role of the Minister
for Foreign Affairs in the international broadcasting licence application
process.
New subsection 121FD(1) provides that if an application for an
international broadcasting licence is referred to the Minister for Foreign
Affairs by the ABA under subsection 121FB(1) or (5), and the Minister for
Foreign Affairs is of the opinion that the proposed international broadcasting
service is likely to be contrary to Australia's national interest, the Minister
for Foreign Affairs may, by written notice to the ABA, direct the ABA not to
allocate an international broadcasting licence to the applicant. The effect of
the provision is that the ABA must refuse to allocate an international
broadcasting licence to a person if, in the opinion of the Minister for Foreign
Affairs, the proposed broadcasting service may be contrary to the national
interest.
New subsection 121FD(2) provides that if an application for an
international broadcasting licence is referred to the Minister for Foreign
Affairs under subsection 121FB(1) or (5), and the Minister for Foreign Affairs
is not of the opinion that the international broadcasting service concerned is
likely to be contrary to the national interest, the Minister for Foreign Affairs
must, by written notice to the ABA, inform the ABA that he or she has no
objection to the allocation of an international broadcasting licence to the
applicant.
New subsection 121FD(3) provides that, for the purposes of
section 121FD, in determining whether a proposed international broadcasting
service is likely to be contrary to Australia's national interest, the Minister
for Foreign Affairs must have regard to the likely effect of the proposed
service on Australia's international relations.
New subsection 121FD(4)
provides that, for the purposes of section 121FD, in determining whether a
proposed international broadcasting service is likely to be contrary to
Australia's national interest, the Minister for Foreign Affairs may have regard
to a report given by the ABA under subsection 121FB(1) or (5).
The
effect of subsection 121FD(4) is that the Minister for Foreign Affairs may have
regard to the ABA report about whether the proposed international broadcasting
service complies with the international broadcasting guidelines. The Minister
for Foreign Affairs may also have regard to any other material that he or she
considers relevant.
New subsection 121FD(5) requires the Minister for
Foreign Affairs to make reasonable efforts to, within 60 days of a referral from
the ABA of an application for an international broadcasting licence, either
direct the ABA not to allocate the licence because he or she is of the opinion
that the proposed international broadcasting service is likely to be contrary to
the national interest, or inform the ABA that he or she does not object to the
allocation of an international broadcasting licence to the applicant.
New subsection 121FD(6) provides that, if the Minister for Foreign
Affairs directs the ABA not to allocate an international broadcasting licence to
an applicant, the ABA is required to give written notice of the direction
to:
(a) in all cases – the applicant;
(b) in the case of an
application under subsection 121FA(1A) (i.e. where the holder of a nominated
broadcaster declaration has applied for the licence on behalf of a content
provider) – the holder of the declaration.
Proposed new
section 121FE of the Broadcasting Services Act 1992 - Allocation of
licence
New section 121FE provides that if the Minister for Foreign
Affairs informs the ABA under subsection 121FD(2) of the BSA that he or she has
no objection to the allocation of an international broadcasting licence to an
applicant, the ABA must allocate the licence to the applicant.
The effect
of new section 121FE is that the ABA has no discretion in relation to the
allocation of an international broadcasting licence once the Minister for
Foreign Affairs has informed the ABA that he or she has no objection on national
interest grounds to the allocation of the licence.
Division 3 -
Obligations of international broadcasting licensees
Proposed new
section 121FF of the Broadcasting Services Act 1992 - Conditions of
international broadcasting licences
New subsection 121FF(1) sets out
the conditions to which each international broadcasting licence is subject. A
licensee of an international broadcasting licence is subject to the following
conditions:
(a) to make a record of programs broadcast on the service in
a form approved by the ABA;
(b) to retain this record of broadcast for 90
days after the broadcast; and
(c) to make this record available to the
ABA on request and free of charge.
The purpose of the record keeping
licence conditions is to ensure that the ABA will receive from licensees records
of broadcasts if the ABA requests these records of broadcasts on behalf of the
Minister for Foreign Affairs under new section 121FN.
New subsection
121FF(2) provides that the conditions in subsection (1) do not apply to an
international broadcasting licence if a nominated broadcaster declaration is in
force in relation to the licence. New section 121FLE imposes conditions on
nominated broadcaster declarations which mirror the conditions in new section
121FF.
Division 4 - Remedies
Proposed new section
121FG of the Broadcasting Services Act 1992 - Prohibition on providing an
international broadcasting service without a licence
New subsection
121FG(1) provides that a person is guilty of an offence if the person
intentionally provides an international broadcasting service and does not have a
licence to provide that service and is reckless as to that fact. The penalty
for this offence is 20,000 penalty units. Currently a penalty unit is $110, so
the current penalty is $2,200,000. Under subsection 4B(3) of the Crimes Act
1914, if a body corporate is convicted of an offence against a Commonwealth
law, the Court may impose a penalty of up to 5 times the amount of the maximum
penalty that could be imposed on a natural person.
New subsection 121FG(2) provides that a person who contravenes subsection
121FG(1) is guilty of a separate offence in respect of each day during which the
contravention continues. Section 213 of the BSA provides that the
maximum penalty for each day that an offence that is a continuing offence
continues is 10% of the maximum penalty for the principal
offence.
Proposed new section 121FH of the Broadcasting Services
Act 1992 - Notice for providing an international broadcasting service
without a licence
New subsection 121FH(1) provides for the ABA to
issue a notice to a person who the ABA is satisfied is providing an
international broadcasting service without a licence for that service, directing
that person to cease providing the service.
New subsection 121FH(2)
provides that a person is guilty of an offence if the person has been issued
with a notice by the ABA under subsection 121FH(1) and the person intentionally
fails to comply with the notice. The penalty for this offence is 20,000
penalty units. Currently a penalty unit is $110, so the current penalty is
$2,200,000. Under subsection 4B(3) of the Crimes Act 1914, if a body
corporate is convicted of an offence against a Commonwealth law, the Court may
impose a penalty of up to 5 times the amount of the maximum penalty that could
be imposed on a natural person.
New subsection 121FH(3) provides that a
person who contravenes subsection 121FH(2) is guilty of a separate offence in
respect of each day during which the contravention continues. Section 213 of
the BSA provides that the maximum penalty for each day that an offence that is a
continuing offence continues is 10% of the maximum penalty for the principal
offence.
Proposed new section 121FJ of the Broadcasting Services Act 1992 -
Offence for breach of conditions of international broadcasting licence
New section 121FJ provides that a person is guilty of an offence if
the person is an international broadcasting licensee, and the person
intentionally breaches a condition of the licence. The penalty is 2,000 penalty
units, which is currently $220,000.
Subsection 4B(3) of the Crimes
Act 1914 would not apply to this penalty as the offence only applies to
licensees and applicants for licences must be a company.
Proposed new
section 121FK of the Broadcasting Services Act 1992 - Cancellation of
licence if service does not commence within 2 years
New section
121FK provides for cancellation of an international broadcasting licence by the
ABA if the licensee does not start providing the service within 2 years.
Proposed new section 121FK also requires the ABA to give written notice of the
intention to cancel a licence, and to notify the ACA that an international
broadcasting licence has been cancelled.
New subsection 121FK(1) empowers
the ABA to cancel a licence if the person who was allocated the licence has not
commenced to provide the international broadcasting service within 2 years of
allocation of the licence. This provision is intended to ensure that a national
interest assessment, which is part of the licence allocation process for an
international broadcasting licence, will be reasonably current when the proposed
service commences. As the ABA will have the discretion to cancel the licence,
and is required to seek representations from a licensee if the ABA is proposing
to cancel the licence, the ABA will be obliged to take any matters raised by the
licensee into account before cancelling the licence under this proposed new
provision.
New subsection 121FK(2) requires the ABA to give the
licensee notice of its intention to cancel a licence under subsection 121FK(1),
and to provide a licensee with a reasonable opportunity to make representations
in relation to the proposed cancellation. This is intended to ensure that the
ABA takes all relevant issues into account in any decision to cancel a licence
under proposed new section 121FK.
New subsection 121FK(3) provides that,
if the ABA cancels a licence under subsection 121FK(1), the ABA must notify the
cancellation to the ACA. This provision is relevant to the proposed amendments
in the Bill to the Radiocommunications Act 1992 (RA) which include that
the ABA must cancel a transmitter licence that authorises the operation of a
radiocommunications transmitter used to transmit an international broadcasting
service, where the international broadcasting licence that authorises the
provision of the international broadcasting service has been cancelled or
surrendered (see new section 128A of the RA).
Proposed new section
121FL of the Broadcasting Services Act 1992 - Formal warning, or
cancellation or suspension of licence, where service is contrary to Australia's
national interest
New section 121FL provides for formal warning,
suspension and cancellation of international broadcasting licences by the ABA,
on the direction of the Minister for Foreign Affairs, on national interest
grounds. New section 121FL provides the Minister for Foreign Affairs with a
choice of three enforcement options so that he or she may choose the option that
he or she believes is warranted in the circumstances. The Minister for Foreign
Affairs is not, for example, required to direct the ABA to issue a formal
warning to an international broadcasting licensee before he or she may direct
the ABA to suspend or cancel an international broadcasting licence.
New
subsection 121FL(1) provides that, if the Minister for Foreign Affairs is of the
opinion that a licensed international broadcasting service is contrary to the
national interest, and the Minister for Foreign Affairs directs the ABA to issue
a formal warning to the licensee, the ABA must issue the formal warning to the
licensee.
New subsection 121FL(2) provides that, if the ABA issues a
formal warning to a licensee under new subsection 121FL(1), the ABA must notify
the warning to the ACA.
New subsection 121FL(3) provides that if the
Minister for Foreign Affairs is of the opinion that a licensed international
broadcasting service is contrary to the national interest, and the Minister for
Foreign Affairs directs the ABA to suspend the licence for a period specified in
the direction, the ABA must suspend the licence for the period specified in the
direction. If the holder of an international broadcasting licence has been
informed by the ABA that its licence has been suspended, and the service
continues during that period of suspension, the holder of the licence would be
guilty of the offence of providing an international broadcasting service without
a licence (new section 121FG).
New subsection 121FL(4) provides that, if
the ABA suspends a licence under subsection 121FL(3), the ABA must notify the
suspension to the ACA.
New subsection 121FL(5) provides that, if the
Minister for Foreign Affairs is of the opinion that a licensed international
broadcasting service is contrary to the national interest, and the Minister for
Foreign Affairs directs the ABA to cancel the licence, the ABA must cancel the
licence.
New subsection 121FL(6) provides that, if the Minister for
Foreign Affairs proposes to direct the ABA to cancel an international
broadcasting licence, he or she must direct the ABA to give the licensee written
notice of that intention, and give the licensee a reasonable opportunity to send
a submission to the ABA in relation to the proposed direction to cancel the
licence, and forward any submission to the Minister for Foreign
Affairs.
New subsection 121FL(6) is intended to provide a mechanism to
ensure that before the Minister for Foreign Affairs may direct the ABA to cancel
an international broadcasting licence on national interest grounds, the holder
of the licence will have been given the opportunity to raise any relevant
matters that should be taken into account by the Minister for Foreign Affairs
before proceeding to direct the ABA to cancel the licence.
New
subsection 121FL(7) provides that, if the ABA cancels a licence under subsection
121FL(5), the ABA must notify the cancellation to the ACA.
New subsection
121FL(8) provides that, in determining whether an international broadcasting
service is contrary to the national interest for the purposes of section 121FL,
the Minister for Foreign Affairs must have regard to the effect of the service
on Australia's international relations.
In determining whether an
international broadcasting service is contrary to the national interest under
new subsection 121FL(8) the Minister for Foreign Affairs is not precluded from
having regard to the corporate status and continuing suitability of a
licensee.
New subsection 121FL(9) provides that, for the purposes of new
section 121FL, the Minister for Foreign Affairs may, in determining whether an
international broadcasting service is contrary to the national interest, have
regard to a report given by the ABA under new section 121FM. Section 121FM
provides that the Minister for Foreign Affairs may direct the ABA to prepare a
report about whether a specified international broadcasting service complies
with the international broadcasting guidelines.
New subsection 121FL(9)
has been included in section 121FL so that it is clear that an ABA report under
section 121FM is not the only source of material to which the Minister for
Foreign Affairs may have regard when he or she decides whether to direct the ABA
to give a formal warning to an international broadcasting licensee, or to
suspend or cancel an international broadcasting licence.
Division 4A sets out the detail of the nominated broadcaster declaration
scheme.
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.
New section 121FLB 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.
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 new section
121FLE.
New subsection 121FLC(2) requires the ABA to give copies of a
nominated broadcaster declaration to both the content provider and the
transmission provider. 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. 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. 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.
New section 121FLD 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));
• for the purposes of the BSA, the content provider is
taken to provide the international broadcasting service (paragraph
121FLD(f));
• 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.
New section 121FLE imposes conditions on nominated broadcaster
declarations which mirror the conditions in new section 121FF that are imposed
on international broadcasting licences where there is no nominated
broadcaster.
New section 121FLF 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.
New section 121FLG 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 any 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 (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 (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 (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 (subsection 121FLG(4)).
Subsection 121FLG(5)
provides that a revocation under subsection 121FLG(1), (2) or (3) takes effect
on the date specified in the revocation.
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.
Subsection 121FLG(7) requires the time limit
specified in the notice to be at least 7 days.
Subsections 121FLG(8) and
(9) are intended to ensure that a holder of a nominated broadcaster declaration
and a content provider cannot 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.
New section 121FLH 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 (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 (paragraph
121FLH(2)(c)).
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, 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.
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. Subsection 121FLH(6) requires the ABA to notify the ACA of a
cancellation under subsections 121FLH(1) or (2).
New section 121FLJ 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.
Division 5 - ABA to assist the Minister for Foreign
Affairs
Proposed new section 121FM of the Broadcasting Services
Act 1992 - Report about compliance with international broadcasting
guidelines
New section 121FM provides that the Minister for Foreign
Affairs may direct the ABA to prepare a report about whether a specified
international broadcasting service complies with the international broadcasting
guidelines.
Proposed new section 121FN of the Broadcasting Services
Act 1992 - Records of broadcasts
New section 121FN provides that
the Minister for Foreign Affairs may direct the ABA to obtain specified records
or copies of records of broadcasts from an international broadcasting licensee
and give the records or copies to the Minister for Foreign Affairs.
The
purpose of the provision is to ensure that, if the Minister for Foreign Affairs
wishes to review specific broadcasts which he or she is concerned may be
contrary to the national interest, he or she may direct the ABA to acquire the
relevant records of broadcasts. The licensee should have these records as
keeping records of broadcasts for 90 days and giving the records to the ABA on
request are licence conditions to which all international broadcasting licensees
are subject as a result of new section 121FF.
Division 6 -
Miscellaneous
Proposed new section 121FP of the Broadcasting
Services Act 1992 - International broadcasting guidelines
New
subsection 121FP(1) requires the ABA to formulate written guidelines relating to
international broadcasting services. Subsection 121FP(2) provides that
international broadcasting guidelines may deal with matters other than
Australia's national interest. Subsection 121FP(3) provides that the guidelines
formulated by the ABA under subsection (1) are disallowable instruments for the
purposes of section 46 of the AIA.
Proposed new section 121FQ of the
Broadcasting Services Act 1992 - Surrender of international broadcasting
licences
New subsection 121FQ(1) provides that an international
broadcasting licensee may surrender the licence by giving written notice to the
ABA.
New subsection 121FQ(2) provides that the ABA must notify the ACA
if a licence is surrendered under subsection (1).
Proposed new
section 121FR of the Broadcasting Services Act 1992 - Complaints about
international broadcasting services
New section 121FR provides that
it is not a function of the ABA to monitor and investigate complaints concerning
international broadcasting services. However, if an international broadcasting
service also falls into another category of broadcasting services, new section
121FR does not prevent the ABA from performing its function of monitoring and
investigating complaints about the service in the service's capacity as a
service that falls into that other category.
Proposed new section
121FS of the Broadcasting Services Act 1992 - Statements about decisions
of the Minister for Foreign Affairs
New section 121FS 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.
Item 23 – Proposed amendment of section 204 of the
Broadcasting Services Act 1992 (to add a table item before item dealing
with refusal to include a code of practice in the Register)
Item 23
amends the table in section 204 of the Act so that an appeal to the
Administrative Appeals Tribunal is available from the following decisions of the
ABA:
• that a company is an unsuitable applicant for an
international broadcasting licence (under new section
121FC);
• cancellation of an international broadcasting licence
(under new section 121FK);
• refusal to make a nominated
broadcaster declaration (under new section 121FLC);
• revocation of
a nominated broadcaster declaration (under new section 121FLG);
and
• cancellation of an international broadcasting licence
following revocation of a nominated broadcaster declaration (under new section
121FLH).
Item 24 – Proposed amendment of subsection 214(1) of
the Broadcasting Services Act 1992
This item amends subsection
214(1) of the BSA so that subsection 214(1) contains a reference to subsections
121FG(2) and 121FH(3). Section 214 provides for the procedure in relation to
continuing offences under the BSA. New subsections 121FG(2) and 121FH(3)
provide that the offences in subsection 121FG(1) and 121FH(2) respectively are
continuing offences.
Item 25 – Proposed amendment of
subclause 1(1) of Schedule 1 of the Broadcasting Services Act 1992
Item 25 amends subclause 1(1) of Schedule 1 of the Act to include
international broadcasting licences in the list of broadcasting licences.
Schedule 1 is intended to provide a means of finding out who is in a position to
exercise control of broadcasting licences, newspapers and companies and a means
of tracing company interests. Subclause 1(1) has been amended to include
international broadcasting licences because under new section 121FC, in deciding
whether an applicant for an international broadcasting licence is an unsuitable
applicant, the ABA is required to take into account the business record of each
person who would be in a position to control an international broadcasting
licence, and the record in situations requiring trust and candour of each person
who would be in a position to control an international broadcasting licence.
Item 26 - Proposed amendment of subclause 4(4) of Schedule 1 of the
Broadcasting Services Act 1992 to amend the definition of media
company
Item 26 amends the definition of media company
in subclause 4(4) of Schedule 1 of the BSA so that the definition
includes a company that holds an international broadcasting licence.
Radiocommunications Act 1992
Item 27 –
Proposed amendment of section 5 of the Radiocommunications Act 1992 to
insert a definition of international broadcasting licence
Item
27 inserts a definition of international broadcasting licence into
section 5, the interpretation section of the RA.
Item 28 - Proposed
amendment of section 5 of the Radiocommunications Act 1992 to insert a
definition of international broadcasting service
Item 28
inserts a definition of international broadcasting service into
section 5, the interpretation section of the RA.
Item 28A - Proposed
amendment of section 5 of the Radiocommunications Act 1992 to insert a
definition of provisional international broadcasting
certificate
Item 28A inserts a definition of provisional
international broadcasting certificate into section 5, the
interpretation section of the RA.
Item 29 - Proposed amendment of
section 100 of the Radiocommunications Act 1992 to insert new subsections
100(3B) and (3C)
Item 29 inserts new subsections 100(3B) and (3C)
into the RA.
New subsection 100(3B) provides that the ACA must not issue
a transmitter licence authorising operation of a radiocommunications transmitter
for transmitting an international broadcasting service unless there is in force
an international broadcasting licence that authorises provision of that
service.
New subsection 100(3B) ensures that an international
broadcasting licence to authorise provision of the international broadcasting
service must be obtained before the transmitter licence (which authorises the
use of a transmitter to transmit the international broadcasting service) is
obtained. This is intended to ensure that the national interest assessment
which must take place before the ABA may allocate an international broadcasting
licence to a person has been completed before the ACA is required to consider an
application for a transmitter licence to authorise use of a transmitter to
transmit an international broadcasting service.
New subsection 100(3C)
of the RA 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.
Subsection 100(3C) 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.
Item
30 - Proposed amendment of subsection 108(2) of the Radiocommunications Act
1992 to insert a new paragraph 108(2)(da)
Item 30 inserts a new
paragraph 108(2)(da) into the RA that provides that it is a condition of a
transmitter licence that the licensee and any person authorised by the licensee
under section 114 of the RA, must not operate, or permit operation of, a
transmitter for transmitting an international broadcasting service unless there
is in force an international broadcasting licence authorising provision of that
service.
Breach of the licence condition in new paragraph 108(2)(da) will
be an offence under section 113 of the RA, and will be a ground for the ACA to
suspend or cancel a licence under Division 6 of Part 3.3 of the RA. Including
the proposed new condition in the RA is intended to discourage the holder of a
transmitter licence from transmitting an international broadcasting service in
relation to which there is not in force an international broadcasting
licence.
Item 31 - Proposed amendment of paragraph 118(1)(d) of the
Radiocommunications Act 1992
Item 31 amends paragraph
118(1)(d) of the RA so that, among the things that a licensee must notify a
person authorised to use a transmitter under a transmitter licence, is a notice
under new subsection 128B(1) cancelling the licence.
Item 32 -
Proposed amendment of the Radiocommunications Act 1992 to insert a new
heading before section 125
Item 32 inserts a new heading "Subdivision
A - General Provisions" into Division 6 of Part 3.3 of the RA. This is
necessary because item 34 adds a new Subdivision B at the end of Division 6 of
Part 3.3, and the current Division 6 will become Subdivision A.
Item
33 - Proposed amendment of section 125 of the Radiocommunications Act 1992
Item 33 amends section 125 so that all references to "this
Division" are references to "this Subdivision".
Item 34 - Proposed
amendment of the Radiocommunications Act 1992 to insert a new Subdivision
at the end of Division 6 of Part 3.3
Item 34 adds a new Subdivision B
to Division 6 of Part 3.3 which contains the special cancellation rules that
apply only in relation to transmitter licences used for the transmission of
international broadcasting services.
New section 128A provides that
Subdivision B applies to a transmitter licence if the licence authorises the
operation of a radiocommunications transmitter for transmitting one or more
international broadcasting services, and each international broadcasting licence
that authorised the provision of those international broadcasting services has
been surrendered or cancelled. Under the proposed amendments to the BSA in this
Bill, the ABA is required to notify the ACA if an international broadcasting
licence is surrendered or cancelled.
New section 128B provides that the
ACA must, by written notice to the holder of the transmitter licence, cancel the
licence and that the notice must give the reasons for cancelling the licence.
In this case, the reasons for cancelling the licence will be that the ACA has
been advised by the ABA that the international broadcasting licence in relation
to the international broadcasting service has been surrendered or
cancelled.
If a transmitter licence that authorises use of a transmitter
for transmitting an international broadcasting service also authorises use of a
transmitter for another purpose, and that transmitter licence is cancelled by
the ACA under new section 128B of the RA, it is intended that the ACA will issue
a new transmitter licence in relation to that other purpose.
Item 34A
- Proposed new Division 10 of Part 3.3 of the Radiocommunications Act 1992
This amendment inserts a new Division 10 – Provisional
international broadcasting certificates – into Part 3.3 of the RA.
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.
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 (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
(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 (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 (subsection 131AF(4)).
New section 131AG 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.
Item 35 - Proposed amendment of paragraph 148(c) of the
Radiocommunications Act 1992
Item 35 amends paragraph 148(c)
so that reference to cancellation of a licence under new section 128B is
included in the paragraph. Section 148 of the RA requires the ACA
to update the Register of Radiocommunications Licences which the ACA is required
to establish and keep under section 143 of the RA.
Item 35A - Proposed
new paragraph 285(mb) of the Radiocommunications Act 1992
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.
Part 2 - Transitional
Provisions
Item 36 - Transitional - existing providers of
international broadcasting services
Item 36 is a transitional
provision which will be of relevance to persons who are providing international
broadcasting services when the scheme for regulating international broadcasting
commences.
Subitem 36(1) provides that the prohibition on providing an
international broadcasting service in new sections 121FG and 121FH of the BSA,
and the licence condition in new paragraph 108(2)(da) of the RA, do not apply
until whichever of the following times is applicable:
(a) if the person
does not apply for an international broadcasting service within 30 days of the
commencement of this item - the end of 30 days after the item
commences;
(b) if the person applies for an international broadcasting
licence for the service within 30 days but the licence is not allocated to the
person - the time when the person receives notification from the ABA that the
licence is refused because the person is not a company or a suitable applicant,
or because the Minister for Foreign Affairs is of the opinion that the proposed
international broadcasting service is likely to be contrary to the national
interest;
(c) if the person applies for an international broadcasting
licence and the licence is allocated to the person - the time when the licence
is allocated.
Subitem 36(1A) 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 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.
Subitem 36(2)
provides that if a person was providing an international broadcasting service
before the commencement of item 36, new sections 121FB and 121FD of the BSA,
which refer to proposed international broadcasting services, have effect as if
the service was a proposed service.
Item 36 is intended to ensure that
a person who is already providing an international broadcasting service when new
Part 8B commences is given adequate time to apply for an international
broadcasting licence, during which time the offences of providing an
international broadcasting service without a licence, or failing to comply with
an ABA direction to cease providing an unlicensed international broadcasting
service, do not apply to them.