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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Broadcasting
Services Amendment Bill (No. 4) 1999
No.
, 1999
(Communications, Information Technology and the
Arts)
A Bill for an Act to amend the
Broadcasting Services Act 1992, and for other
purposes
ISBN: 0642
426708
Contents
Part
1—Amendments 3
Administrative Decisions (Judicial Review) Act
1977 3
Broadcasting Services Act
1992 3
Radiocommunications Act
1992 18
Part 2—Transitional
provisions 20
A Bill for an Act to amend the Broadcasting Services
Act 1992, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Broadcasting Services Amendment Act (No.
4) 1999.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Administrative
Decisions (Judicial Review) Act 1977
1 At the end of Schedule 2
Add:
; (zc) decisions of the Minister for Foreign Affairs under Part 8B of the
Broadcasting Services Act 1992 (for this purpose, Minister for
Foreign Affairs has the same meaning as in that Act).
Broadcasting
Services Act 1992
2 After paragraph 3(1)(j)
Insert:
(ja) to ensure that international broadcasting services are not provided
contrary to Australia’s national interest; and
3 After subsection 4(3)
Insert:
(3A) This section does not apply to Part 8B (which deals with
international broadcasting services).
4 Subsection 6(1)
Insert:
international broadcasting guidelines means guidelines in
force under section 121FP.
5 Subsection 6(1)
Insert:
international broadcasting licence means a licence to provide
an international broadcasting service.
6 Subsection 6(1)
Insert:
international broadcasting service has the meaning given by
section 18A.
7 Subsection 6(1)
Insert:
Minister for Foreign Affairs means the Minister administering
the Diplomatic Privileges and Immunities Act 1967.
8 After paragraph 11(f)
Insert:
(fa) international broadcasting services;
9 After section 11
Insert:
An international broadcasting service may also fall into another category
of broadcasting services.
10 Subsection 12(1)
Omit “and subscription television broadcasting services”,
substitute “, subscription television broadcasting services and
international broadcasting services”.
11 At the end of section 12
Add:
Dual categorisation of international broadcasting services
(3) An international broadcasting service that also falls into the
category of commercial broadcasting services requires both:
(a) an international broadcasting licence; and
(b) either:
(i) a commercial radio broadcasting licence; or
(ii) a commercial television broadcasting licence.
(4) An international broadcasting service that also falls into the
category of community broadcasting services requires both:
(a) an international broadcasting licence; and
(b) a community broadcasting licence.
(5) An international broadcasting service that also falls into the
category of subscription television broadcasting services requires
both:
(a) an international broadcasting licence; and
(b) a subscription television broadcasting licence.
(6) Both of the following rules apply to an international broadcasting
service that also falls into a category of broadcasting services covered by
subsection (2):
(a) the service requires an international broadcasting licence;
(b) the service is to be provided under the relevant class
licence.
12 After section 18
Insert:
(1) International broadcasting services are broadcasting services that are
targeted, to a significant extent, to audiences outside Australia,
where:
(a) the means of delivering the services involves the use of a
radiocommunications transmitter in Australia (whether alone or in
combination with any other means); and
(b) the services comply with any determinations or clarifications under
section 19 in relation to international broadcasting services.
(2) A broadcasting service is not an international broadcasting service if
the broadcasting service is:
(a) provided by the Australian Broadcasting Corporation in accordance with
section 6 of the Australian Broadcasting Corporation Act 1983;
or
(b) provided by the Special Broadcasting Service Corporation in accordance
with section 6 of the Special Broadcasting Service Act 1991; or
(c) an exempt broadcasting service (as defined by subsection
(3)).
(3) For the purposes of this section, a broadcasting service is an
exempt broadcasting service if:
(a) the service delivers only programs packaged outside Australia (which
may include programs produced in 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 (whether alone or
in combination with any other means).
(4) The references in this section to localities do not, by implication,
affect the application of paragraph 21(b) of the Acts Interpretation Act
1901 and section 10 of this Act to a provision of this Act that deals with a
category of broadcasting services other than international broadcasting
services.
(5) In this section:
Australia includes the external Territories.
radiocommunications transmitter has the same
meaning as in the Radiocommunications Act 1992.
13 Paragraphs 19(1)(a) and
(b)
Omit “18”, substitute “18A”.
14 Subsection 21(1)
After “which category”, insert “, or
categories,”.
15 Subsection 21(2)
After “which category”, insert “, or
categories,”.
16 Subsection 21(4)
After “which category”, insert “, or
categories,”.
17 Paragraph 21(5)(a)
After “different category”, insert “, or different
categories,”.
18 Paragraph 21(5)(b)
After “different category” (first occurring), insert “or
different categories”.
19 Paragraph 21(5)(b)
After “different category” (second occurring), insert “,
or different categories,”.
20 Subsection 21(6)
After “which category”, insert “, or
categories,”.
21 At the end of section 21
Add:
(8) The ABA must not give an opinion under this section that a particular
broadcasting service falls into more than one category of broadcasting services
unless one of the categories is international broadcasting services.
(9) A person must not, in an application under this section, state an
opinion that a particular broadcasting service falls into more than one category
of broadcasting services unless one of the categories is international
broadcasting services.
22 Before Part 9
Insert:
The following is a simplified outline of this Part:
• Applications may be made to the ABA for the allocation of
international broadcasting licences.
• The ABA may only reject an application for the allocation of an
international broadcasting licence to a person if:
(a) the ABA is not satisfied that the person is an Australian company;
or
(b) the ABA is not satisfied that the person is a suitable applicant;
or
(c) the Minister for Foreign Affairs is of the opinion that the
international broadcasting service is likely to be contrary to Australia’s
national interest.
• A licensee must keep records of broadcasts for 90 days.
• An international broadcasting licence may only be cancelled
if:
(a) the licensee does not commence to provide an international
broadcasting service within 2 years; or
(b) the Minister for Foreign Affairs is of the opinion that the
international broadcasting service is likely to be contrary to Australia’s
national interest.
(1) A person may apply to the ABA for a licence to provide an
international broadcasting service.
(2) The application must:
(a) be in accordance with a form approved in writing by the ABA;
and
(b) be accompanied by the application fee determined in writing by the
ABA.
(1) If the ABA:
(a) is satisfied that an applicant for an international broadcasting
licence is a company that is formed in Australia or in an external Territory;
and
(b) does not decide that subsection 121FC(1) applies to the
applicant;
the ABA must:
(c) refer the application to the Minister for Foreign Affairs;
and
(d) give the Minister for Foreign Affairs a report about whether the
proposed international broadcasting service concerned complies with the
international broadcasting guidelines.
(2) If the ABA:
(a) is not satisfied that an applicant for an international broadcasting
licence is a company that is formed in Australia or in an external Territory;
or
(b) decides that subsection 121FC(1) applies to the applicant;
the ABA must refuse to allocate an international broadcasting licence to
the applicant.
(3) If, under subsection (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.
(1) The ABA may, 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:
(a) an offence against this Act or the regulations being committed;
or
(b) a breach of the conditions of the licence occurring;
decide that this subsection applies to the company.
(2) In deciding whether such a risk exists, the ABA is to take into
account:
(a) the business record of the company; and
(b) the company’s record in situations requiring trust and candour;
and
(c) the business record of each person who is, or would be, if an
international broadcasting licence were allocated to the company, in a position
to control the licence; and
(d) the record in situations requiring trust and candour of each such
person; and
(e) whether the company, or a person referred to in paragraph (c) or (d),
has been convicted of an offence against this Act or the regulations.
Direction not to allocate licence
(1) If:
(a) an application for an international broadcasting licence is referred
to the Minister for Foreign Affairs under subsection 121FB(1); and
(b) the Minister for Foreign Affairs is of the opinion that the proposed
international broadcasting service concerned is likely to be contrary to
Australia’s national interest;
the Minister for Foreign Affairs may, by written notice given to the ABA,
direct the ABA not to allocate an international broadcasting licence to the
applicant.
No objection to allocation of licence
(2) If:
(a) an application for an international broadcasting licence is referred
to the Minister for Foreign Affairs under subsection 121FB(1); and
(b) the Minister for Foreign Affairs is not of the opinion that the
proposed international broadcasting service concerned is likely to be contrary
to Australia’s national interest;
the Minister for Foreign Affairs must, by written notice given to the ABA,
inform the ABA that he or she has no objection to the allocation of an
international broadcasting licence to the applicant.
Australia’s national interest
(3) For the purposes of this section, 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.
(4) For the purposes of this section, 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). This subsection does not limit the
material to which the Minister for Foreign Affairs may have regard.
Decision to be made within 60 days
(5) If an application for an international broadcasting licence is
referred to the Minister for Foreign Affairs under subsection 121FB(1), the
Minister for Foreign Affairs must make reasonable efforts to either:
(a) direct the ABA under subsection (1) of this section; or
(b) inform the ABA under subsection (2) of this section;
within 60 days after the referral.
Notification
(6) If the Minister for Foreign Affairs directs the ABA not to allocate an
international broadcasting licence to an applicant, the ABA must give written
notice of the direction to the applicant.
If the Minister for Foreign Affairs informs the ABA under subsection
121FD(2) 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.
Each international broadcasting licence is subject to the following
conditions:
(a) the licensee must cause a record of programs broadcast on the
international broadcasting service concerned to be made in a form approved in
writing by the ABA;
(b) the licensee must retain in its custody a record so made for a period
of 90 days after the broadcast;
(c) the licensee must, without charge, make available to the ABA, on
request, any specified record made by the licensee under paragraph (a) that has
been retained by the licensee (whether or not the licensee is, at the time of
the request, under an obligation to retain the record).
(1) A person is guilty of an offence if the person:
(a) intentionally provides an international broadcasting service;
and
(b) does not have an international broadcasting licence to provide the
service, and is reckless as to that fact.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) is guilty of a separate
offence in respect of each day (including a day of a conviction for the offence
or any later day) during which the contravention continues.
(1) If the ABA is satisfied that a person is providing an international
broadcasting service without an international broadcasting licence that
authorises the provision of that service, the ABA may, by notice in writing
given to the person, direct the person to cease providing the service.
(2) A person is guilty of an offence if:
(a) a person is subject to a notice under subsection (1); and
(b) the person intentionally fails to comply with the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subsection (2) is guilty of a separate
offence in respect of each day (including a day of a conviction for the offence
or any later day) during which the contravention continues.
A person is guilty of an offence if:
(a) the person is an international broadcasting licensee; and
(b) the person intentionally breaches a condition of the
licence.
Penalty: 2,000 penalty units.
(1) If:
(a) a person has been allocated an international broadcasting licence;
and
(b) the person has not commenced to provide the international broadcasting
service concerned within 2 years after the allocation of the licence;
the ABA may cancel the licence.
Notice of intention to cancel
(2) If the ABA proposes to cancel a licence under subsection (1), the ABA
must give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in
relation to the proposed cancellation.
Cancellation to be notified to the Australian Communications
Authority
(3) If the ABA cancels a licence under subsection (1), the ABA must notify
the cancellation to the Australian Communications Authority.
Formal warning
(1) If:
(a) an international broadcasting service is provided under an
international broadcasting licence; and
(b) the Minister for Foreign Affairs is of the opinion that the service is
contrary to Australia’s national interest; and
(c) the Minister for Foreign Affairs, by written notice given to the ABA,
directs the ABA to issue a formal warning to the licensee;
the ABA must issue a formal warning to the licensee.
(2) If the ABA issues a formal warning under subsection (1), the ABA must
notify the warning to the Australian Communications Authority.
Suspension of licence
(3) If:
(a) an international broadcasting service is provided under an
international broadcasting licence; and
(b) the Minister for Foreign Affairs is of the opinion that the service is
contrary to Australia’s national interest; and
(c) the Minister for Foreign Affairs, by written notice given to the ABA,
directs the ABA to suspend the licence for the period specified in the
direction;
the ABA must suspend the licence for the period specified in the
direction.
(4) If the ABA suspends a licence under subsection (3), the ABA must
notify the suspension to the Australian Communications Authority.
Cancellation of licence
(5) If:
(a) an international broadcasting service is provided under an
international broadcasting licence; and
(b) the Minister for Foreign Affairs is of the opinion that the service is
contrary to Australia’s national interest; and
(c) the Minister for Foreign Affairs, by written notice given to the ABA,
directs the ABA to cancel the licence;
the ABA must cancel the licence.
(6) 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:
(a) give the licensee written notice of his or her intention;
and
(b) give the licensee a reasonable opportunity to send a submission to the
ABA in relation to the proposed direction; and
(c) forward any such submission to the Minister for Foreign
Affairs.
(7) If the ABA cancels a licence under subsection (5), the ABA must notify
the cancellation to the Australian Communications Authority.
Australia’s national interest
(8) For the purposes of this section, in determining whether an
international broadcasting service is contrary to Australia’s national
interest, the Minister for Foreign Affairs must have regard to the effect of the
service on Australia’s international relations.
(9) For the purposes of this section, in determining whether an
international broadcasting service is contrary to Australia’s national
interest, the Minister for Foreign Affairs may have regard to a report given by
the ABA under section 121FM. This subsection does not limit the material to
which the Minister for Foreign Affairs may have regard.
The Minister for Foreign Affairs may, by written notice given to the ABA,
direct the ABA to:
(a) prepare a report about whether a specified international broadcasting
service complies with the international broadcasting guidelines; and
(b) give the report to the Minister for Foreign Affairs.
The Minister for Foreign Affairs may, by written notice given to the ABA,
direct the ABA to:
(a) obtain specified records from an international broadcasting licensee
under section 121FF; and
(b) give the records to the Minister for Foreign Affairs.
(1) The ABA must formulate written guidelines relating to international
broadcasting services.
(2) To avoid doubt, international broadcasting guidelines may deal with
matters other than Australia’s national interest.
(1) An international broadcasting licensee may, by notice in writing given
to the ABA, surrender the licence.
(2) If a licence is surrendered under subsection (1), the ABA must notify
the surrender to the Australian Communications Authority.
(1) It is not a function of the ABA to monitor and investigate complaints
concerning international broadcasting services.
(2) However, if an international broadcasting service also falls into
another category of broadcasting services, this section 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.
23 Section 204 (before table item dealing with
refusal to include a code of practice in the Register)
Insert:
|
That subsection 121FC(1) applies to a company |
Subsection 121FC(1) |
The company |
|
Cancellation of an international broadcasting licence |
Subsection 121FK(1) |
The licensee |
24 Subsection 214(1)
After “subsection 66(2)”, insert “, 121FG(2) or
121FH(3)”.
25 Subclause 1(1) of Schedule
1
After “subscription television broadcasting licences,”, insert
“international broadcasting licences,”.
26 Subclause 4(4) of Schedule 1 (after paragraph
(b) of the definition of media company)
Insert:
(ba) a company that holds an international broadcasting licence;
or
27 Section 5
Insert:
international broadcasting licence means an international
broadcasting licence under the Broadcasting Services Act 1992.
28 Section 5
Insert:
international broadcasting service has the same meaning as in
the Broadcasting Services Act 1992.
29 After subsection 100(3A)
Insert:
(3B) 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 the provision of that service.
30 After paragraph
108(2)(d)
Insert:
(da) must not operate, or permit operation of, the transmitter for
transmitting an international broadcasting service unless there is in force an
international broadcasting licence authorising the provision of that service;
and
31 Paragraph 118(1)(d)
After “128(1)”, insert “or 128B(1)”.
32 Before section 125
Insert:
33 Section 125
Omit “Division” (wherever occurring), substitute
“Subdivision”.
Note: The heading to section 125 is altered by omitting
“Division” and substituting
“Subdivision”.
34 At the end of Division 6 of Part
3.3
Add:
This Subdivision applies to a transmitter licence if:
(a) the licence authorises the operation of a radiocommunications
transmitter for transmitting one or more international broadcasting services;
and
(b) each international broadcasting licence that authorised the provision
of those international broadcasting services has been surrendered or
cancelled.
(1) The ACA must, by written notice given to the holder of the transmitter
licence, cancel the transmitter licence.
(2) The notice must give the reasons for cancelling the licence.
35 Paragraph 148(c)
After “128”, insert “or 128B”.
Part
2—Transitional
provisions
36 Transitional—existing providers of
international broadcasting services
(1) If a person was providing an international broadcasting service
immediately before the commencement of this item, sections 121FG and 121FH of
the Broadcasting Services Act 1992 and paragraph 108(2)(da) of
the Radiocommunications Act 1992 do not apply to the provision of the
service by the person at any time during the period:
(a) beginning at the commencement of this item; and
(b) ending at whichever of the following times is applicable:
(i) if the person does not apply for an international broadcasting licence
for the service within 30 days after the commencement of this item—the end
of 30 days after the commencement of this item;
(ii) if the person applies for an international broadcasting licence for
the service within 30 days after the commencement of this item, but an
international broadcasting licence is not allocated to the person—the time
when the person receives the relevant notification under subsection 121FB(3) or
121FD(6) of the Broadcasting Services Act 1992;
(iii) if the person applies for an international broadcasting licence for
the service within 30 days after the commencement of this item and such a
licence is allocated to the person—the time when the licence is
allocated.
(2) If a person was providing an international broadcasting service
immediately before the commencement of this item, sections 121FB and 121FD of
the Broadcasting Services Act 1992 have effect as if the service were a
proposed service.