Bills Digest 69 1996-97
Broadcasting Services Amendment Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 9 January 1997.
CONTENTS
Broadcasting Services Amendment Bill 1996
Date Introduced: 10 October 1996
House: Senate
Portfolio: Communications and the Arts
Commencement: On Royal Assent
The Bill provides for amendments to the Broadcasting Services Act
1992 (the Principal Act) to widen the range of matters which may be
inquired into by the Australian Broadcasting Authority (ABA) at the direction
of the Minister for Communications and the Arts.
As stated in the Explanatory Memorandum, one immediate purpose of the
proposed amendments is to ensure that the Minister's power to direct the
ABA to conduct investigations extends to the investigation of future regulatory
arrangements and policy directions in respect of on-line services such
as those available by way of the Internet.
The Commonwealth's power to regulate broadcasting rests principally
on section 51(v) of the Australian Constitution which provides that the
Commonwealth Parliament may make laws dealing with 'Postal, telegraphic,
telephonic and other like services'.
The argument that the Commonwealth power does not extend to post 1900
forms of mass communication such as radio (R v Brislan; Ex parte Williams)(1)
and television (Jones v Commonwealth)(2) has been rejected by the
High Court, albeit in split decisions.Even then, there was no support
in the dissenting judgements for the proposition that the Commonwealth
could not regulate individual two-way communication of the sort that takes
place on the Internet (eg E-mail).
The Principal Act establishes the ABA and gives it a range of powers
and functions which include:
- the allocation, renewal, suspension and cancellation of broadcasting
licences
- assisting broadcasting service providers in developing codes of practice
and in monitoring compliance with those codes
- monitoring and investigating complaints regarding broadcasting services,
and
- informing itself and advising the Minister on technological advances
and service trends in the broadcasting industry.(3)
Section 160 of the Principal Act provides that the ABA is also to perform
its functions in a manner consistent with the general objects of the Act
and any government policies notified by the Minister.
Section 170 of the Principal Act provides that the ABA may conduct investigations
for the purposes of the performance of its functions and powers.Section
171 presently provides that if the Minister is satisfied that a particular
matter should be investigated in the interests of due administration of
the Act, then he or she may direct the ABA in writing to conduct an investigation.Sections
172–203 give the ABA defined powers in relation to the conduct of such
investigations. For example, section 195 provides that a person presiding
over a hearing constituted to conduct an investigation under the Act has,
amongst other things, the power to summon witnesses.
On 24 July 1995, the thenMinister for Communications and the Arts, Hon
Michael Lee, directed the ABA to conduct an investigation into the content
of on-line information and entertainment services, including services
on the Internet, and to consider the appropriateness of developing codes
of practice for on-line services which, as far as possible, are in accordance
with community standards.The Minister's direction was in part a response
to community concerns regarding the content of such services and perceptions
regarding ease of access to material of either a pornographic nature or
that which is unsuitable for minors.
The ABA's Report, Investigation into the content of on-line services,
was presented to the current Minister, Senator Hon Richard Alston, on
1 July 1996.
The ABA concluded that many on-line services are, in effect, on demand
services, and do not come within the definition of 'broadcasting service'
at subsection 6(1) of the Principal Act.(4)(Paragraph 6(1)(b) of the Principal
Act states that a 'broadcasting service' does not include 'a service that
makes programs available on demand on a point-to-point basis, including
a dial-up service'.)
Therefore, whilst there appears little doubt that the Commonwealth has
the constitutional power to investigate (and regulate) the provision of
many on-line services, the Principal Act (as presently worded) limits
the jurisdiction of the ABA in relation to these matters, ie the scope
of the Act is narrower than the Commonwealth's constitutional power.For
example, it is doubtful whether the ABA's powers of compulsion under the
Act can be relied on in relation to an inquiry into a matter not connected
with a 'broadcasting service' as defined.The ABA could probably, however,
exercise its powers where there is a genuine and substantive (albeit incidental)
connection between the investigation and its other powers and functions
under the Act.
The present amendments seek to clarify the powers and functions of the
Minister and the ABA in relation to the above matters. This is described
in the Second Reading Speech as an interim measure.
Item 3 of the Schedule provides for the repeal of section 171
and substitutes new provisions widening the class of matters into which
the Minister may direct the ABA to inquire.
Proposed section 171 provides that the Minister may (in writing) direct
the ABA to investigate any matter:
- in relation to which the Parliament may make laws under section 51(v)
of the Constitution; and
- any matter that the Minister is satisfied should be investigated in
relation to the due administration of the Act or any matter relating
to the provision of 'telecommunications services'.
'Telecommunications service' is to have the same meaning as under the
Telecommunications Act 1991. Section 5 of the Telecommunications
Act provides that a 'telecommunications service' means 'a service for
carrying communications by means of guided or unguided electromagnetic
energy or both.'
Consequential to the widening of the Minister's power to order ABA investigations
into a more extensive range of matters, section 172 is to be amended to
confer a broad and explicit power on the ABA to call for written submissions
from members of the public.Item 4 also appears directed to making
it plain that the ABA's power to call for submissions is not confined
by the list of specific functions and powers presently outlined in the
Act.
Item 5 is a savings provision which seeks to confirm the validity
of investigations being undertaken under section 171 prior to the commencement
of this Bill.
In its 1996 Report to the Minister the ABA noted that:
The ABA is of the view that there are significant differences between
on-line services and traditional media and therefore any legal definition
of an on-line service should be separate and distinct from any legal definition
of a broadcasting service.In this way the two types of services will be
dealt with in accordance with their own particular characteristics.
If the Parliament takes the view that the majority of on-line services
should be 'accommodated by the Act', this will require legislative amendment.The
different nature of on-line and broadcasting services would suggest that
such amendment should take the form of a separate definition and regulatory
regime for on-line services within the Act.(5)
This Bill does not act on the ABA's recommendation.This, however, should
not give rise to any immediate policy concerns because, as has already
been noted, the Second Reading Speech describes the provisions in the
Bill as an interim measure, pending Government consideration of a comprehensive
regulatory framework for on-line services.
The principal purpose of this legislation seems to be to allow the ABA
to investigate and have a formal role in the possible regulation of on-line
services and to dispel any legal doubts about the validity of ABA investigations
conducted immediately prior to the passage of this legislation.The powers
of the ABA and broadcasting regulation in general have proven to a litigious
area and an abundance of caution is understandable.
It may also be noted, however, that the powers to be conferred on the
Minister and the ABA extend beyond the investigation and examination of
on-line services.
Proposed subsection 171(1), which is not limited in its scope by the
other provisions of the Bill, confers on the Minister the power to direct
the ABA to exercise its powers of investigation with respect to any matters
which come within section 51(v) of the Constitution.The subject matter
coming within section 51(v) of the Constitution is, on the basis of previous
High Court decisions, quite extensive and is further extended by what
is known as an 'inherent incidental power' which forms part of each head
of power delineated under section 51 of the Constitution.
If the Government had merely intended that the Act should be broadened
to deal with on-line services and not a wider range of communications
issues, specific amendments dealing with on-line services only could have
been contemplated.As it is, the formulation relied on in the Bill is more
open-ended and may make it possible to widen the ABA's investigative role
at a later date without further legislative change.
- (1935) 54 CLR 262.
- (1965) 112 CLR 206
- See sections 158 and 159 of the Principal Act.
- ABA Report at page 48.
- ABA Report, op cit: 48.
Bob BennettPh. 06 277 2430
8 January 1997
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ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 4 March 1997
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