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introduced and does not canvass subsequent amendments.
This Digest was available from 9 January 1997.
Broadcasting Services Amendment Bill 1996
Date Introduced: 10 October 1996
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
- assisting broadcasting service providers in developing codes of
practice and in monitoring compliance with those codes
- monitoring and investigating complaints regarding broadcasting
- 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
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
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
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
'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
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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Last updated: 4 March 1997
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