BROADCASTING SERVICES AMENDMENT BILL (NO. 3) 1999

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This is a Bill, not an Act. For current law, see the Acts databases.

BROADCASTING SERVICES AMENDMENT BILL (NO. 3) 1999

1998-99

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Broadcasting Services Amendment Bill (No. 3) 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 426260

Contents

Part 1—Amendments commencing on Royal Assent 3

Broadcasting Services Act 1992 3

Part 2—Amendments commencing on 1 July 2000 39

Broadcasting Services Act 1992 39

Part 3—Amendments commencing on 1 July 2001 42

Broadcasting Services Act 1992 42

Broadcasting Services Act 1992 43

Part 1—Amendments 44

Administrative Decisions (Judicial Review) Act 1977 44

Broadcasting Services Act 1992 44

Radiocommunications Act 1992 59

Part 2—Transitional provisions 61

A Bill for an Act to amend the Broadcasting Services Act 1992, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Broadcasting Services Amendment Act (No. 3) 1999.

2 Commencement

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Part 2 of Schedule 1 commences on 1 July 2000.

(3) Part 3 of Schedule 1 commences on 1 July 2001.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Eligible drama expenditure rules for subscription television broadcasting

Part 1—Amendments commencing on Royal Assent

Broadcasting Services Act 1992

1 Section 102

Repeal the section.

2 After Division 2 of Part 7

Insert:

Division 2A—Eligible drama expenditure

Subdivision A—Introduction

103A Simplified outline

The following is a simplified outline of this Division:

• This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs.

• An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co-production.

• If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.

• If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.

• If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.

• Licensees and channel providers are required to lodge annual returns about their program expenditure.

103B Definitions

In this Division:

acquiring, in relation to a drama program, includes acquiring rights in relation to the program.

Australian Content Standard means:

(a) the Broadcasting Services (Australian Content) Standard 1999 as in force from time to time; or

(b) if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time.

channel means a continuous stream of programs.

channel provider has the meaning given by section 103C.

compliance certificate means a certificate under section 103ZE.

drama program means a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure, and includes:

(a) a fully scripted sketch comedy program; or

(b) an animated drama; or

but does not include:

(d) a program that involves the incidental use of actors; or

(e) advertising or sponsorship matter (whether or not of a commercial kind).

eligible drama program means:

(a) a drama program that is an Australian program (within the meaning of the Australian Content Standard); or

(b) a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or

(d) a drama program that is an Australian official co-production (within the meaning of the Australian Content Standard).

Note: Section 103ZK sets out a special rule for 1999-2000.

expenditure, in relation to a program or program material, means:

(a) expenditure incurred in acquiring the program or program material; or

(b) expenditure incurred in producing the program or program material; or

(d) expenditure incurred by way of the making of an investment in the program or program material;

and includes nil expenditure.

Note: Section 103H sets out a special rule for pre-production expenditure.

financial year means:

(a) the financial year beginning on 1 July 1999; or

(b) a later financial year.

incidental matter means:

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

(b) a program promotion; or

(d) a hosting; or

(e) any other interstitial program.

licensee means a subscription television broadcasting licensee.

new, in relation to an eligible drama program, has the meaning given by section 103K.

part-channel provider has the meaning given by section 103D.

part-pass-through provider has the meaning given by section 103F.

pass-through provider has the meaning given by section 103E.

pre-production expenditure, in relation to a program or program material, means:

(a) expenditure incurred in developing the screenplay for the program or program material; or

(b) any other expenditure incurred by way of pre-production costs for the program or program material.

program material does not include advertising or sponsorship matter (whether or not of a commercial kind).

registered auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Law.

subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.

103C Channel providers

For the purposes of this Division, a channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) packages a channel (which may include programs produced by the person); and

(b) supplies the licensee with the channel; and

(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103D Part-channel providers

For the purposes of this Division, a part-channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) assembles a package of programs (which may include programs produced by the person); and

(b) supplies the licensee with the package; and

(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d) the package consists predominantly of drama programs; and

(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

(f) there is neither:

(i) a channel provider; nor

(ii) a pass-through provider;

in relation to the subscription TV drama service.

103E Pass-through providers

For the purposes of this Division, a pass-through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) packages a channel (which may include programs produced by the person); and

(b) supplies the licensee with the channel; and

(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103F Part-pass-through providers

For the purposes of this Division, a part-pass-through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) assembles a package of programs (which may include programs produced by the person); and

(b) supplies the licensee with the package; and

(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d) the package consists predominantly of drama programs; and

(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

(f) there is neither:

(i) a channel provider; nor

(ii) a pass-through provider;

in relation to the subscription TV drama service.

103G Supply of channel or package

For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:

(a) directly; or

(b) indirectly through one or more interposed persons.

103H Pre-production expenditure not to be counted unless principal photography has commenced

For the purposes of this Division, pre-production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.

103J Cash-based accounting—when expenditure is incurred

(1) For the purposes of this Division:

(a) if the whole of an item of expenditure (other than pre-production expenditure) is paid at a particular time—the expenditure is incurred when the expenditure is paid; and

(b) if different parts of an item of expenditure (other than pre-production expenditure) are paid at different times—each part is incurred when the part is paid.

(2) For the purposes of this Division:

(a) if the whole of an item of pre-production expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:

(i) the time when the expenditure is paid;

(ii) the commencement of principal photography for the program or program material concerned; and

(b) if different parts of an item of pre-production expenditure are paid at different times—each part is incurred at whichever is the later of the following times:

(i) the time when the part is paid;

(ii) the commencement of principal photography for the program or program material concerned.

103K When expenditure incurred on a new eligible drama program

(1) For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.

(2) For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.

103L ABA may make determinations about what constitutes program expenditure

Program material

(1) The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).

(2) The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).

Eligible drama programs

(3) The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.

(4) The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.

Determination has effect

(5) A determination under this section has effect accordingly.

Determination to be of a legislative character

(6) A determination under this section is to be an instrument of a legislative character.

Disallowable instrument

(7) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

103M Expenditure to be nominated only once in meeting licence conditions

Channel provider and part-channel provider

(1) If:

(a) either:

(i) a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or

(ii) a person is a part-channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and

(b) the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:

(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or

(e) the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.

(2) However, the rule in paragraph (1)(e):

(a) does not apply in relation to a person who is a channel provider if:

(i) the person supplies the same or a substantially similar channel to the other licensee; and

(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and

(b) does not apply in relation to a person who is a part-channel provider if:

(i) the person supplies the same or a substantially similar package of programs to the other licensee; and

(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.

Licensee

(3) If:

(a) a licensee provides a subscription TV drama service; and

(b) the licensee nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:

(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.

Subdivision B—Channel provider supplies channel

103N 10% minimum eligible drama expenditure—channel provider supplies channel

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the channel provider’s total program expenditure in relation to the channel.

(2) In this section:

channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

channel provider’s total program expenditure, in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.

(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note: If the channel provider’s new eligible drama expenditure is less than 10% of the channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.

103P Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel (the first channel); and

(c) it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and

(d) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year) is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):

(a) the channel provider’s make-up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make-up expenditure is equal to the shortfall amount; or

(i) the channel provider’s make-up expenditure; and

(ii) the first licensee’s make-up expenditure;

is equal to the shortfall amount.

Definitions

(3) In this section:

channel provider’s make-up expenditure means so much of the total expenditure incurred by the channel provider during the make-up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

103Q Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a channel provider in relation to the first subscription TV drama service because the person supplies a channel (the first channel); and

(c) the channel provider supplies the same or a substantially similar channel to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):

(a) the channel provider’s make-up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or

(c) if the channel provider’s make-up expenditure is less than the shortfall amount—the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the channel provider’s make-up expenditure.

Definitions

(3) In this section:

first licensee’s subscriber percentage means the percentage worked out using the following formula:

monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:

subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.

subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.

Subdivision C—Pass-through provider supplies channel

103R 10% minimum eligible drama expenditure—pass-through provider supplies channel

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the licensee’s new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the licensee’s total program expenditure in relation to the channel.

(2) In this section:

licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:

(a) so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and

(b) so much of the total expenditure incurred by the pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee’s total program expenditure, in relation to the channel, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the pass-through provider of the channel.

(3) If:

(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and

(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note: If the licensee’s new eligible drama expenditure is less than 10% of the licensee’s total program expenditure, the shortfall will have to be made up in the next financial year—see section 103S.

103S Shortfall of eligible drama expenditure—pass-through provider supplies channel

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel; and

(c) the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for a particular financial year (the shortfall year) is less than 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the licensee’s licence that, for the next financial year (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.

Definitions

(3) In this section:

licensee’s make-up expenditure, in relation to the subscription TV drama service, means the sum of:

(a) so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service; and

(b) so much of the total expenditure incurred by the pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.

Double counting

(4) If:

(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s make-up expenditure in subsection (3); and

(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

Subdivision D—Licensee supplies all program material

103T 10% minimum eligible drama expenditure—licensee supplies all program material

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) there is none of the following:

(i) a channel provider;

(ii) a pass-through provider;

(iii) a part-channel provider;

(iv) a part-pass-through provider;

in relation to the subscription TV drama service;

(2) In this section:

licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee’s total program expenditure, in relation to the subscription TV drama service, means the total expenditure incurred by the licensee during the financial year on program material that is for televising, or available for televising, by the licensee on the subscription TV drama service.

Note: Section 103ZL sets out a special rule for 1999-2000.

Subdivision E—Part-channel provider supplies package of programs

103U 10% minimum eligible drama expenditure—part-channel provider supplies package of programs

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs;

it is a condition of the licence that, for each financial year of operation, the part-channel provider’s new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the part-channel provider’s total program expenditure in relation to the package of programs.

(2) In this section:

part-channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the part-channel provider during the financial year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

part-channel provider’s total program expenditure, in relation to the package of programs, means the total expenditure incurred by the part-channel provider during the financial year on the program material that is included, or available to be included, in the package of programs.

(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note: If the part-channel provider’s new eligible drama expenditure is less than 10% of the part-channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103V and 103W.

103V Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs exclusively to licensee

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs (the first package of programs); and

(c) it is not the case that the part-channel provider supplies the same or a substantially similar package of programs to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the other licensee on another subscription TV drama service; and

(d) the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year) is less than 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):

(a) the part-channel provider’s make-up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make-up expenditure is equal to the shortfall amount; or

(i) the part-channel provider’s make-up expenditure; and

(ii) the first licensee’s make-up expenditure;

is equal to the shortfall amount.

Definitions

(3) In this section:

first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

part-channel provider’s make-up expenditure means so much of the total expenditure incurred by the part-channel provider during the make-up year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year fell short of 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.

103W Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs to multiple licensees

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a part-channel provider in relation to the first subscription TV drama service because the person supplies a package of programs (the first package of programs); and

(c) the part-channel provider supplies the same or a substantially similar package of programs to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):

(a) the part-channel provider’s make-up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or

(c) if the part-channel provider’s make-up expenditure is less than the shortfall amount—the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the part-channel provider’s make-up expenditure.

Definitions

(3) In this section:

first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee’s subscriber percentage means the percentage worked out using the following formula:

monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:

subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.

subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.

Subdivision F—Part-pass-through provider supplies package of programs

103X 10% minimum eligible drama expenditure—part-pass-through provider supplies package of programs

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs;

(2) In this section:

licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:

(b) so much of the total expenditure incurred by the part-pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee’s total program expenditure, in relation to the package of programs, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the part-pass-through provider of the package of programs.

(3) If:

(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and

(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

103Y Shortfall of eligible drama expenditure—part-pass-through provider supplies package of programs

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs; and

(c) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for a particular financial year (the shortfall year) is less than 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the licensee’s licence that, for the next financial year (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.

Definitions

(3) In this section:

licensee’s make-up expenditure, in relation to the subscription TV drama service, means the sum of:

(b) so much of the total expenditure incurred by the part-pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.

Double counting

(4) If:

(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s make-up expenditure in subsection (3); and

(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

Subdivision G—Licensee supplies part of program material

103Z 10% minimum eligible drama expenditure—licensee supplies part of program material

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) some, but not all, of the program material that is televised by the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:

(i) a part-channel provider; or

(ii) a part-pass-through provider;

in relation to the subscription TV drama service; and

(c) the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs;

(2) In this section:

licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

(a) not included in that package; and

(b) for televising, or available for televising, by the licensee on the subscription TV drama service.

Note: Section 103ZL sets out a special rule for 1999-2000.

Subdivision H—Annual returns

103ZA Licensee to lodge annual return

(1) A licensee who provides one or more subscription TV drama services must, within 60 days after the end of each financial year of operation, give to the ABA:

(a) a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and

(b) a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return, in so far as it relates to expenditure incurred by the licensee, is correct.

(2) A person is guilty of an offence if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person intentionally contravenes that requirement.

Penalty: 1,000 penalty units.

(3) A reference in this section to an approved form is a reference to a form approved, in writing, by the ABA for the purposes of the provision in which the expression appears.

103ZB Channel provider and part-channel provider to lodge annual return

(1) If a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year, the person must, within 60 days after the end of that financial year, give to the ABA:

(a) a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and

(b) a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return is correct.

(2) A person is guilty of an offence if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person intentionally contravenes that requirement.

Penalty: 1,000 penalty units.

(3) If:

(a) a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and

(b) the person contravenes subsection (1) in relation to the financial year;

the ABA must inform the licensee, in writing, of that contravention as soon as practicable after the ABA becomes aware of that contravention.

(4) A reference in this section to an approved form is a reference to a form approved, in writing, by the ABA for the purposes of the provision in which the expression appears.

103ZC ABA may inquire into the correctness of an annual return

The ABA may make whatever inquiries it thinks necessary or desirable in order to determine whether a return given to it under this Subdivision contains correct information.

103ZD Nominations to be attached to annual returns

Licensee

(1) A nomination that:

(a) is made by a licensee; and

(b) relates to the application of a provision of this Division in respect of a financial year;

must:

(d) accompany the return given by the licensee under section 103ZA for that financial year.

Channel provider and part-channel provider

(2) A nomination that:

(a) is made by a person who is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and

(b) relates to the application of a provision of this Division in respect of that financial year;

must:

(d) accompany the relevant return given by the channel provider or the part-channel provider, as the case may be, under section 103ZB for that financial year.

Subdivision I—Compliance certificates

103ZE ABA to issue compliance certificate

Channel provider

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel; and

then, as soon as practicable, the ABA must:

(d) give the licensee a written certificate stating:

(i) whether the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for the financial year fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year; and

(ii) if so, that an amount specified in the certificate is the amount of the shortfall; and

(e) give the channel provider a copy of that certificate.

Pass-through provider

(2) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel; and

then, as soon as practicable, the ABA must give the licensee a written certificate stating:

(d) whether the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the financial year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the financial year; and

(e) if so, that an amount specified in the certificate is the amount of the shortfall.

Part-channel provider

(3) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs; and

then, as soon as practicable, the ABA must:

(d) give the licensee a written certificate stating:

(i) whether the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service for the financial year fell short of 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the package of programs for the financial year; and

(ii) if so, that an amount specified in the certificate is the amount of the shortfall; and

(e) give the part-channel provider a copy of that certificate.

Part-pass-through provider

(4) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs; and

then, as soon as practicable, the ABA must give the licensee a written certificate stating:

(d) whether the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the financial year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the financial year; and

(e) if so, that an amount specified in the certificate is the amount of the shortfall.

Note: For the evidentiary effect of a compliance certificate, see section 103ZF.

103ZF Compliance certificate to be prima facie evidence

(1) A compliance certificate is, in proceedings arising under this Act, prima facie evidence of the matters in the certificate.

(2) The ABA may certify that a document is a copy of a compliance certificate.

(3) This section applies to the certified copy as if it were the original.

Subdivision J—Miscellaneous

103ZG Anti-avoidance—transactions between persons not at arm’s length

(1) If:

(a) a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and

(b) apart from this section, the expenditure is counted for the purposes of the application of this Division; and

the ABA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Division in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.

(2) A determination under subsection (1) has effect accordingly.

103ZH Expenditure to be expressed in Australian currency

(1) For the purposes of this Division, expenditure is to be expressed in Australian currency.

(2) For the purposes of this Division, if expenditure is incurred otherwise than in Australian currency, the expenditure is to be expressed in Australian currency at a rate equal to whichever of the following is applicable:

(a) if the expenditure is incurred in connection with a transaction and the parties to the transaction have agreed on the exchange rate that is applicable to the expenditure—that exchange rate; or

(b) in any other case—the exchange rate applicable at the time when the expenditure is incurred.

103ZJ Review before 31 March 2003

(1) Before 31 March 2003, the Minister must cause to be conducted a review relating to Australian and New Zealand content on subscription television broadcasting services.

(2) The Minister must cause to be prepared a report of a review under subsection (1).

(3) The Minister must cause copies of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Subdivision K—Transitional

103ZK Extended meaning of eligible drama program

This Division has effect, in relation to expenditure incurred during the financial year beginning on 1 July 1999, as if a reference in this Division to an eligible drama program included a reference to an Australian drama program.

103ZL Licensee supplies program material during 1999-2000—enforcement of licence conditions

Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection 103T(1) or 103Z(1) to the extent to which the condition relates to the operation of a subscription TV drama service during the financial year beginning on 1 July 1999.

Note: If the licensee’s new eligible drama expenditure for the financial year beginning on 1 July 1999 is less than 10% of the licence’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103ZM and 103ZN.

103ZM Licensee supplies all program material during 1999-2000—shortfall to be made up during 2000-2001

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) there is none of the following:

(i) a channel provider;

(ii) a pass-through provider;

(iii) a part-channel provider;

(iv) a part-pass-through provider;

in relation to the subscription TV drama service; and

(c) the licensee’s new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the financial year beginning on 1 July 1999 (the shortfall year) is less than 10% of the licensee’s total program expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the licence that, for the financial year beginning on 1 July 2000 (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.

Definitions

(3) In this section:

licensee’s make-up expenditure means so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee’s new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year.

103ZN Licensee supplies part of program material during 1999-2000—shortfall to be made up during 2000-2001

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(i) a part-channel provider; or

(ii) a part-pass-through provider;

in relation to the subscription TV drama service; and

(c) the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs; and

(d) the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the financial year beginning on 1 July 1999 (the shortfall year) is less than 10% of the licensee’s total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the licence that, for the financial year beginning on 1 July 2000 (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.

Definitions

(3) In this section:

licensee’s make-up expenditure means so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year.

3 Section 208

After “information,”, insert “or in a return under section 103ZA or 103ZB,”.

4 After paragraph 18(2)(i) of Schedule 3

Insert:

(ia) make, vary or revoke a determination under section 103L; or

5 Transitional—section 102 of the Broadcasting Services Act 1992

Despite the repeal of section 102 of the Broadcasting Services Act 1992 by this Part, that section continues to apply, in relation to program expenditure for a financial year earlier than the financial year beginning on 1 July 1999, as if that repeal had not happened.

Part 2—Amendments commencing on 1 July 2000

Broadcasting Services Act 1992

6 Subsection 6(1) (definition of Australian drama program)

Repeal the definition.

7 Subsection 6(1) (definition of drama program)

Repeal the definition.

8 Subsection 6(3)

Repeal the subsection.

9 Section 103B (note at the end of the definition of eligible drama program)

Repeal the note.

10 Section 103T (note)

Repeal the note.

11 Section 103Z (note)

Repeal the note.

12 Sections 103ZK and 103ZL

Repeal the sections.

13 Subsection 139(2)

After “Schedule 2”, insert “or section 103P, 103Q, 103S, 103T, 103V, 103W, 103Y, 103Z, 103ZM or 103ZN”.

14 After subsection 143(1)

Insert:

(1A) If:

(a) a subscription television broadcasting licensee provides a subscription TV drama service (within the meaning of Division 2A of Part 7); and

(b) the licence is suspended because of a breach of a condition set out in that Division;

the ABA may take such action, by way of suspending one or more subscription television broadcasting licences held by:

(d) a related body corporate of the licensee;

as the ABA considers necessary to ensure that the same, or a substantially similar, service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.

(1B) If:

(a) a subscription television broadcasting licensee provides a subscription TV drama service (within the meaning of Division 2A of Part 7); and

(b) the licence is cancelled because of a breach of a condition set out in that Division;

the ABA may take such action, by way of cancelling one or more subscription television broadcasting licences held by:

(d) a related body corporate of the licensee;

as the ABA considers necessary to ensure that the same, or a substantially similar, service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.

15 Subsection 143(2)

After “subsection (1)”, insert “, (1A) or (1B)”.

16 At the end of section 143

Add:

(3) In this section:

related body corporate has the same meaning as in the Corporations Law.

17 Section 204 (table item dealing with declaration that a program is not an Australian drama program)

Repeal the item.

18 Section 204 (table item dealing with suspension or cancellation of licence)

Omit “Subsection 143(1)”, substitute “Section 143”.

19 Transitional—expenditure incurred before 1 July 2000

(1) Despite the amendments of sections 6 and 204 of the Broadcasting Services Act 1992 made by this Part, those sections continue to apply, in relation to expenditure incurred during:

(a) the financial year beginning on 1 July 1999; or

(b) an earlier financial year;

as if those amendments had not been made.

(2) Despite the amendments of Division 2A of Part 7 of the Broadcasting Services Act 1992 made by this Part, that Act continues to apply, in relation to expenditure incurred during the financial year beginning on 1 July 1999, as if those amendments had not been made.

Part 3—Amendments commencing on 1 July 2001

Broadcasting Services Act 1992

20 Subdivision K of Division 2A of Part 7

Repeal the Subdivision.

21 Subsection 139(2)

Omit “103Y, 103Z, 103ZM or 103ZN”, substitute “103Y or 103Z”.

22 Transitional—expenditure incurred before 1 July 2001

Despite the amendments of the Broadcasting Services Act 1992 made by this Part, that Act continues to apply, in relation to expenditure incurred before the financial year beginning on 1 July 2001, as if those amendments had not been made.

Schedule 2—International obligations

Broadcasting Services Act 1992

1 Subsection 6(1)

Insert:

CER Trade in Services Protocol:

(a) means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and

(b) includes an instrument under that Protocol (being that instrument as in force from time to time).

2 Paragraph 160(d)

Repeal the paragraph, substitute:

(d) Australia’s obligations under the CER Trade in Services Protocol.

Schedule 3—International broadcasting services

Part 1—Amendments

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:

11A Dual categorisation of international broadcasting services

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:

18A International broadcasting services

(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

(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:

Part 8B—International broadcasting licences

Division 1—Simplified outline

121F Simplified outline

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.

Division 2—Allocation of international broadcasting licences

121FA Application for international broadcasting licence

(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.

121FB Corporate status and suitability

(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:

(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.

121FC Unsuitable 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.

121FD Australia’s national interest

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.

121FE Allocation of licence

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.

Division 3—Obligations of international broadcasting licensees

121FF Conditions of international broadcasting licences

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).

Division 4—Remedies

121FG Prohibition on providing an international broadcasting service without a licence

(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.

121FH Notice for providing an international broadcasting service without a licence

(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.

121FJ Offence for breach of conditions of international broadcasting licence

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.

121FK Cancellation of licence if service does not commence within 2 years

(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.

121FL Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest

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

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

(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.

Division 5—ABA to assist the Minister for Foreign Affairs

121FM Report about compliance with international broadcasting guidelines

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.

121FN Records of broadcasts

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.

Division 6—Miscellaneous

121FP International broadcasting guidelines

(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.

121FQ Surrender of international broadcasting licences

(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.

121FR Complaints about international broadcasting services

(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

Radiocommunications Act 1992

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:

Subdivision A—General provisions

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:

Subdivision B—International broadcasting services

128A Application of this Subdivision

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.

128B Cancelling transmitter licences

(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.

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That subsection 121FC(1) applies to a company	Subsection 121FC(1)	The company
Cancellation of an international broadcasting licence	Subsection 121FK(1)	The licensee