Bills Digest 69 1996-97 Broadcasting Services Amendment Bill 1996


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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

Passage History

Broadcasting Services Amendment Bill 1996

Date Introduced: 10 October 1996
House: Senate
Portfolio: Communications and the Arts
Commencement: On Royal Assent

Purpose

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.

Background

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.

Main Provisions

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.

Remarks

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)

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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.

Endnotes

  1. (1935) 54 CLR 262.
  2. (1965) 112 CLR 206
  3. See sections 158 and 159 of the Principal Act.
  4. ABA Report at page 48.
  5. ABA Report, op cit: 48.

Contact Officer and Copyright Details

Bob BennettPh. 06 277 2430
8 January 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
© Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 4 March 1997

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