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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
As read a third
time
Broadcasting
Services Amendment Bill 2000
No. ,
2000
A Bill for an Act to amend
the Broadcasting Services Act 1992, and for other purposes
ISBN: 0642 42067X
Contents
Part
1—Amendments 3
Administrative Decisions (Judicial Review) Act
1977 3
Broadcasting Services Act
1992 3
Radiocommunications Act
1992 28
Part 2—Transitional
provisions 33
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
I.C. HARRIS
Clerk of the House
of Representatives
House of Representatives
31 October
2000
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
2000.
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repealed as set out in the applicable items in the Schedule concerned, and any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.
• The ABA may make declarations (nominated broadcaster
declarations) that allow international broadcasting licences and related
transmitter licences to be held by different persons, so long as the transmitter
licence is held by an Australian company.
• If a nominated broadcaster declaration is in force:
(a) the international broadcasting licence may be issued to a company that
is not an Australian company; and
(b) the holder of the transmitter licence must keep records of broadcasts
for 90 days; and
(c) the holder of the transmitter licence may receive notices on behalf of
the holder of the international broadcasting licence.
In this Part:
company means a body corporate.
holder, in relation to a nominated broadcaster declaration,
means the person who applied for the declaration.
nominated broadcaster declaration means a declaration under
section 121FLC.
transmitter licence has the same meaning as in the
Radiocommunications Act 1992.
(1) 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.
(1A) If a person is the holder of a nominated broadcaster declaration in
relation to an international broadcasting service proposed to be provided by
another person (the content provider):
(a) the holder of the declaration may, on behalf of the content provider,
apply to the ABA for a licence authorising the content provider to provide the
international broadcasting service; and
(b) if an application is made under paragraph (a)—the content
provider is taken to be the applicant for the licence.
(1B) An application under this section may only be made on the basis of
one licence per service.
(2) An application under this section 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 under subsection 121FA(1) 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 under subsection 121FA(1) 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 an applicant under
subsection 121FA(1) for an international broadcasting licence;
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.
(4) If an application for an international broadcasting licence is made
under subsection 121FA(1), the ABA must make reasonable efforts to
either:
(a) take action under subsection (1) of this section; or
(b) refuse to allocate the licence;
within 30 days after the application was made.
(5) If the ABA:
(a) is satisfied that an applicant under subsection 121FA(1A) for an
international broadcasting licence is a company; 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.
(6) If the ABA:
(a) is not satisfied that an applicant under subsection 121FA(1A) for an
international broadcasting licence is a company; or
(b) decides that subsection 121FC(1) applies to an applicant under
subsection 121FA(1A) for an international broadcasting licence;
the ABA must refuse to allocate an international broadcasting licence to
the applicant.
(7) If, under subsection (6), the ABA refuses to allocate an
international broadcasting licence to an applicant, the ABA must give written
notice of the refusal to:
(a) the applicant; and
(b) the holder of the nominated broadcaster declaration
concerned.
(8) If an application for an international broadcasting licence is made
under subsection 121FA(1A), the ABA must make reasonable efforts to
either:
(a) take action under subsection (5) of this section; or
(b) refuse to allocate the licence;
within 30 days after the application was made.
(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) or (5);
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) or (5);
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) or (5). 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) or (5),
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:
(a) in all cases—the applicant; and
(b) in the case of an application under subsection 121FA(1A)—the
holder of the nominated broadcaster declaration concerned.
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.
(1) 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).
(2) This
section does not apply to an international broadcasting licence if a nominated
broadcaster declaration is in force in relation to the international
broadcasting service concerned.
Note: Corresponding conditions apply to nominated
broadcaster declarations—see section 121FLE.
(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 main object of this Division is to provide for the making of
declarations (nominated broadcaster declarations) that allow the
following licences to be held by different persons:
(a) an international broadcasting licence that authorises the provision of
an international broadcasting service;
(b) a transmitter licence for a radiocommunications transmitter that is
for use for transmitting the international broadcasting service.
If a person (the transmission provider):
(a) is the licensee of a transmitter licence for a transmitter that is
used, or intended for use, for transmitting an international broadcasting
service; or
(b) proposes to apply for a transmitter licence for a transmitter that is
intended for use for transmitting an international broadcasting
service;
the transmission provider may apply to the ABA for a nominated broadcaster
declaration in relation to the provision of the international broadcasting
service by a particular person (the content provider).
(1) After considering the application, the ABA must declare in writing
that the provision of the international broadcasting service by the content
provider is nominated in relation to the transmitter licence or proposed
transmitter licence, if the ABA is satisfied that:
(a) either:
(i) the content provider holds an international broadcasting licence that
authorises the provision of the international broadcasting service; or
(ii) the content provider does not hold such a licence but, if the
declaration were made, the transmission provider or another person will, within
60 days after the making of the declaration, apply under subsection 121FA(1A),
on behalf of the content provider, for an international broadcasting licence
that authorises the provision of the international broadcasting service by the
content provider; and
(b) the transmission provider intends to transmit the international
broadcasting service on behalf of the content provider; and
(c) the transmission provider is a company that is formed in Australia or
in an external Territory; and
(d) if the declaration were made, the transmission provider would be in a
position to comply with all of the obligations imposed on the transmission
provider under section 121FLE.
(2) The ABA must give a copy of the declaration to:
(a) the transmission provider; and
(b) the content provider.
(3) If the ABA refuses to make a nominated broadcaster declaration, the
ABA must give written notice of the refusal to:
(a) the transmission provider; and
(b) the content provider.
(4) If an application is made for a nominated broadcaster declaration, the
ABA must make reasonable efforts to:
(a) make the declaration under
subsection (1); or
(b) refuse to make the declaration;
within 30 days after the application is made.
(5) This Part does not prevent the ABA 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.
If:
(a) a nominated broadcaster declaration is in force in relation to an
international broadcasting service; and
(b) the provision of the international broadcasting service is authorised
by an international broadcasting licence; and
(c) the holder of the declaration is the licensee of a transmitter licence
that authorises the operation of a transmitter for transmitting the
international broadcasting service; and
(d) the licensee of the transmitter licence transmits the international
broadcasting service on behalf of the licensee of the international broadcasting
licence;
then:
(e) for the purposes of the Radiocommunications Act 1992, the
licensee of the international broadcasting licence is taken not to operate the
radiocommunications transmitter for any purpose in connection with that
transmission; and
(f) for the purposes of this Act:
(i) the licensee of the international broadcasting licence is taken to
provide the international broadcasting service; and
(ii) the licensee of the transmitter licence is taken not to provide the
international broadcasting service; and
(g) for the purposes of this Act, any programs that are transmitted by the
licensee of the transmitter licence on behalf of the licensee of the
international broadcasting licence:
(i) are taken to be programs transmitted by the licensee of the
international broadcasting licence; and
(ii) are not taken to be programs transmitted by the licensee of the
transmitter licence; and
(h) for the purposes of this Part (other than section 121FLG), the
ABA is taken to have given a written notice to the licensee of the international
broadcasting licence if the ABA gives the notice to the licensee of the
transmitter licence.
(1) Each nominated broadcaster declaration is subject to the following
conditions:
(a) the holder of the declaration 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 holder of the declaration must retain in the holder’s
custody a record so made for a period of 90 days after the broadcast;
(c) the holder of the declaration must, without charge, make available to
the ABA, on request, any specified record made by the holder under
paragraph (a) that has been retained by the holder (whether or not the
holder is, at the time of the request, under an obligation to retain the
record).
(2) Subsection (1) does not apply to a nominated broadcaster
declaration unless the holder of the declaration is the licensee of a
transmitter licence that authorises the operation of a transmitter for
transmitting the international broadcasting service concerned.
A person is guilty of an offence if:
(a) the person is the holder of a nominated broadcaster declaration;
and
(b) the person intentionally breaches a condition of the
declaration.
Penalty: 2,000 penalty units.
(1) The ABA must, by writing, revoke a nominated broadcaster declaration
relating to the provision of an international broadcasting service by a person
(the content provider) if the ABA is satisfied that:
(a) the holder of the declaration is neither transmitting, nor proposing
to transmit, the international broadcasting service on behalf of the content
provider; or
(b) 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
(c) the holder of the declaration is not a company that is formed in
Australia or in an external Territory.
(2) The ABA must, by writing, revoke a nominated broadcaster declaration
relating to the provision of an international broadcasting service by a person
(the content provider) if the ABA is satisfied that:
(a) at the time the declaration was made, there was no international
broadcasting licence that authorised the provision of the international
broadcasting service by the content provider; and
(b) either:
(i) no application was made under subsection 121FA(1A) for such a licence
within 60 days after the making of the declaration; or
(ii) an application for such a licence was made under subsection 121FA(1A)
within 60 days after the making of the declaration, but the application was
refused.
(3) The ABA must, by writing, revoke a nominated broadcaster declaration
relating to the provision of an international broadcasting service by a person
(the content provider) if:
(a) the holder of the declaration; or
(b) the content provider;
gives the ABA a written notice stating that the holder of the declaration,
or the content provider, does not consent to the continued operation of the
declaration.
(4) The ABA must give a copy of the revocation to:
(a) the person who held the declaration; and
(b) the content provider.
(5) A revocation under subsection (1), (2) or (3) takes effect on the
date specified in the revocation.
(6) The ABA must not revoke a nominated broadcaster declaration under
subsection (1) or (2) unless the ABA has first:
(a) given the holder of the declaration a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the holder of the declaration to make a submission to the
ABA on the proposal; and
(b) given the content provider a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the content provider to make a submission to the ABA on the
proposal; and
(c) considered any submission that was received under paragraph (a)
or (b) within the time limit specified in the notice concerned.
(7) A time limit specified in a notice under subsection (6) must run
for at least 7 days.
(8) A person must not enter into a contract or arrangement under which the
person or another person is:
(a) prevented from giving a notice under subsection (3); or
(b) subject to any restriction in relation to the giving of a notice under
subsection (3).
(9) A contract or arrangement entered into in contravention of
subsection (8) is void.
(1) If:
(a) a nominated broadcaster declaration ceases to be in force;
and
(b) the provision of the international broadcasting service concerned is
authorised by an international broadcasting licence; and
(c) 30 days pass, and the ABA is satisfied that:
(i) the international broadcasting licensee is not a company that is
formed in Australia or in an external Territory; and
(ii) the international broadcasting licensee has not taken reasonable
steps to arrange for the international broadcasting service to be provided by a
company that is formed in Australia or in an external Territory;
the ABA must cancel the licence.
(2) If:
(a) a nominated broadcaster declaration ceases to be in force;
and
(b) the provision of the international broadcasting service concerned is
authorised by an international broadcasting licence; and
(c) 90 days pass, and the ABA is satisfied that the international
broadcasting licensee is not a company that is formed in Australia or in an
external Territory;
the ABA must cancel the licence.
(3) The ABA may, by written notice given to the licensee, determine that
paragraph (2)(c) has effect, in relation to the licensee, as if a reference
in that paragraph to 90 days were a reference to such greater number of days as
is specified in the notice.
(4) The ABA must not notify a greater number of days under
subsection (3) unless it is satisfied that there are exceptional
circumstances that warrant the greater number of days.
Notice of intention to cancel
(5) If the ABA proposes to cancel a licence under subsection (1) or
(2), 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 ACA
(6) If the ABA cancels a licence under subsection (1) or (2), the ABA
must notify the cancellation to the ACA.
(1) The ABA is to maintain a register in which the ABA includes
particulars of all nominated broadcaster declarations currently in
force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Internet.
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.
(3) International
broadcasting guidelines are disallowable instruments for the purposes of
section 46A of the Acts Interpretation Act 1901.
(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.
(1) If:
(a) the Minister for Foreign Affairs makes a decision under subsection
121FD(1) or 121FL(3) or (5); and
(b) a person is entitled to make an application to the Federal Court or
the Federal Magistrates Court under section 5 of the Administrative
Decisions (Judicial Review) Act 1977 in relation to the decision;
the person may, by written notice given to the Minister for Foreign
Affairs, request the Minister for Foreign Affairs to give the person a written
statement setting out the reasons for the decision.
(2) If a person makes a request under subsection (1) in relation to a
decision, the Minister for Foreign Affairs must either:
(a) as soon as practicable, and in any event within 28 days, after
receiving the request:
(i) prepare a written statement setting out the reasons for the decision;
and
(ii) give the statement to the person; or
(b) both:
(i) as soon as practicable, and in any event within 28 days, after
receiving the request, prepare a statement about the decision; and
(ii) cause a copy of the statement to be laid before each House of the
Parliament within 15 sitting days of that House after the completion of the
preparation of the statement.
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 |
|
Refusal to make a nominated broadcaster declaration |
Section 121FLC |
The transmission provider or the content provider |
|
Revocation of a nominated broadcaster declaration |
Section 121FLG |
The holder of the declaration, or the content provider |
|
Cancellation of an international broadcasting licence |
Section 121FLH |
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.
28A Section 5
Insert:
provisional international broadcasting certificate means a
provisional international broadcasting certificate issued under
section 131AF.
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.
(3C) If:
(a) a provisional international broadcasting certificate is in force in
relation to an application for a transmitter licence; and
(b) the application for the licence is made by the holder of the
certificate; and
(c) 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.
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.
34A At the end of
Part 3.3
Add:
(1) If a person proposes to make an application for a transmitter licence
authorising operation of a radiocommunications transmitter for transmitting an
international broadcasting service, the person may apply in writing to the ACA
for a provisional international broadcasting certificate in relation to the
proposed application for the transmitter licence.
(2) An application under subsection (1) must be in a form approved by
the ACA.
(1) After considering an application under section 131AE, the ACA may
issue to the applicant a provisional international broadcasting certificate in
relation to the proposed application for the transmitter licence.
(2) The certificate must state that, if the following conditions are
satisfied:
(a) the applicant applies for the transmitter licence when the certificate
is in force;
(b) at the time when the application for the transmitter licence is
made:
(i) there is in force an international broadcasting licence that
authorises the provision of the international broadcasting service concerned;
and
(ii) spectrum is available for use for the provision of that
service;
(c) such other conditions (if any) as are specified in the
certificate;
the ACA will be disposed to issue the transmitter licence.
(3) In deciding whether to issue a provisional international broadcasting
certificate, the ACA:
(a) must have regard to all of the matters to which it would be required
to have regard when deciding whether to issue the transmitter licence concerned
(other than the matter mentioned in subsection 100(3B)); and
(b) may have regard to:
(i) any other matters to which it would be permitted to have regard when
deciding whether to issue the transmitter licence concerned; and
(ii) such other matters as the ACA considers relevant.
(4) If the ACA refuses to issue a provisional international broadcasting
certificate to a person, the ACA must give written notice of the refusal to the
person, together with a statement of its reasons.
(1) A provisional international broadcasting certificate comes into force
on the day on which it was issued and remains in force for 240 days.
(2) If a provisional international broadcasting certificate expires,
subsection (1) does not prevent the making of a fresh application for a new
certificate.
35 Paragraph 148(c)
After “128”, insert “or 128B”.
35A After paragraph 285(ma)
Insert:
(mb) refusal to issue a provisional international broadcasting certificate
under section 131AF;
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
(7) 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.
(1A) For the purposes of subitem (1), if an application for an
international broadcasting licence is made on behalf of a person (the
content provider) under subsection 121FA(1A) of the
Broadcasting Services Act 1992, the content provider is taken to have
made the application.
(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.
(244/99)