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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Broadcasting Services Amendment Bill (No. 2)
1997
Date Introduced: 1 October 1997
House: Senate
Portfolio: Communications and the Arts
Commencement: On the 28th day after the day on
which it receives the Royal Assent
To amend the Broadcasting Services Act 1992 to restrict
the availability of X and R-rated material through narrowcasting
services.
Broadcasting services and licences
The Broadcasting Services Act 1992 (hereafter 'the
Act') distinguishes between two types of subscription television
(pay TV):
- broadcasting services. These provide programs intended to
appeal to the general public;
- narrowcasting services. These are services whose reception is
limited by being targeted to special interest groups, or being
provided to limited locations or for a limited period.
Open narrowcasting services are similar to subscription
narrowcasting services except that they are provided free to those
with the appropriate reception equipment.
Pay TV broadcasting services must be licenced under Section 93
(the original three satellite licences) or Section 96 of the Act,
which requires a separate licence for each service. The Australian
Broadcasting Authority (ABA), which issues the licences, takes a
service to be a single stream of programming material.
Narrowcasting services operate under 'class licences'. Class
licences are not individually issued, but are a standing authority
for any operator to enter the market and provide a service, as long
as the operator has access to delivery capacity and abides by the
conditions relevant to the particular category of class
licence.
Codes of Practice
Under section 123 of the Act television broadcasters
(commercial, community, subscription and narrowcasting) must abide
by Codes of Practice developed by industry bodies and approved by
the ABA. Sub-section 123(3A) further requires commercial and
community broadcasters to ensure that their Codes of Practice apply
the film classification system administered by the Office of Film
and Literature Classification and that:
- films classified as 'M' can only be shown between noon and 3
p.m. on school days and between 8.30 p.m. and 5 a.m. at night;
- films classified as 'MA' can only be broadcast between 9 p.m.
and 5 a.m. at night;
- films classified as 'M' and 'MA' must not contain material that
goes beyond the previous 'AO' category.
These limitations do not currently apply to the Codes of
Practice for subscription and narrowcasting broadcasters.
Licence conditions concerning X and R-rated programs
In addition to the requirements of their Codes of Practice,
commercial television broadcasting licences and community
television broadcasting licences are subject to the following
conditions under Schedule 2 (Parts 3 and 5) of the Act:
- the licencee will not broadcast a program that has been refused
classification, or has been classified as 'X', by the Office of
Film and Literature Classification;
- the licencee will not broadcast a film that has been classified
as 'R' unless it has been modified so that it does not portray
material that goes beyond the previous 'AO' classification
criteria.
Subscription television broadcasting licencees are also
prohibited from broadcasting 'X' rated programs. They must also
ensure that access to 'R' programs is restricted by disabling
devices acceptable to the ABA, but that such programs will not be
broadcast until the ABA has conducted research on community
standards for pay television and the ABA has recommended, and both
Houses of Parliament have approved, the broadcast of such programs
(Schedule 2, Part 6).
The ABA survey
The ABA's research was tabled in Parliament on 7 December 1994
in a report titled R Classified Programs on Pay TV. It
recommended that Parliament approve the broadcast of R-rated
programs by subscription television broadcasting licencees. This
recommendation was based on the fact that 82 per cent of a survey
of 2440 Australian adults agreed that adults should have the option
of watching R-rated programs on pay TV. Majority support for this
proposition was apparent across all segments of the population as
defined by age, gender, parental status, state of residence and
area of residence. Agreement varied from a high of 93 per cent
(18-24 years of age) to a low of 73 per cent (65 years and over).
The respondents to the survey were informed that the availability
of R-rated material would be conditional on the approval of
disabling devices installed in the set top boxes provided by pay TV
operators. Such devices could. for example, require personal
identification numbers to be entered before the programs could be
viewed. Other results of the survey were:
- 54 per cent thought that R-rated sexual violence should be
permitted on pay TV;
- 69 per cent thought that R-rated violence should be
permitted;
- 70 per cent thought that R-rated sexual content should be
permitted;
- 54 per cent nominated 11 p.m to 6 a.m. as an acceptable time
for the broadcast of R-rated programs on pay TV;
- 50 per cent nominated 9-11 p.m. as an acceptable time;
- 10 per cent said 'never/no time';
- 8 per cent said that any time was acceptable (respondents could
give more than one response).
'Nightmoves'
As noted above, the codes of practice for subscription
television broadcasters do not contain the restrictions on 'M' and
'MA' programs that apply to commercial and community broadcasters.
Similarly, the licence condition prohibiting 'X' and 'R' material
does not apply to class licences for narrowcasters. These omissions
have been exploited by the pay TV operator Galaxy Media, which
established a channel ('Nightmoves') to broadcast erotica as a
narrowcasting service. Galaxy has claimed that Nightmoves has 12000
subscribers and cost $7m to establish. The channel broadcasts
between 11 pmand 4 am and can only be viewed with PIN number access
codes. Because of these restrictions, the channel can be classified
as a narrowcasting service and avoid the conditions attached to
subscription licences.
Parliamentary reports
The Senate Select Committee on Community Standards Relevant to
the Supply of Services Utilising Electronic Technologies (hereafter
'the Committee') released its Report on R-Rated Material on Pay
TV Part 1 in February 1995. This report was to assist the
Senate in its decision on the availability of R-rated material on
pay TV as per Part 6 of Schedule 2 of the Act. The Committee
expressed reservations about the ABA's research because of
technical and methodological questions which were not discussed in
the report. The Committee elected to draw its own conclusions on
the basis of evidence presented to the Committee rather than the
ABA survey.
The Committee recommended that R-rated material be not permitted
on pay TV because of:
- The community's concerns about the levels of violence in the
media, especially sexual violence and of demeaning and exploitative
sexual material.
- The lack of consensus on the effects of such depections on
attitudes and anti-social behaviour.
- The lack of clarity in the R classification.
A further report (Report on R-Rated material on Pay TV Part
2) was issued on October 1996. It recommended that the Act be
amended to define with greater precision the manner in which
reception of subscription narrowcasting services is to be limited
under s.17 of the Act, so as to prevent the broadcast of R and
X-rated material.
Government policy decision
On the 8 April 1997 the Government announced that it would ban X
rated programs (or any replacement category) on pay TV
narrowcasting services and that such services would be only be
allowed to provide R-rated programs late at night and with
screening devices requiring Personal Identification Numbers. Open
narrowcasting services would be subject to the same conditions that
apply to commercial broadcasting services.
The Bill will accomplish these objectives by inserting new
sub-sections 123 (3C and 3D) in the Act. These require the Code of
Practice for open narrowcasting television services to contain the
same limitations on the showing of 'M' and 'MA' programs that apply
to the commercial and community television services.
The Bill will also add new sub-sections 3 and 4 to Clause 11 of
Schedule 2 of the Act. These will apply to class licences the same
conditions concerning 'X' and 'R' rated films that apply to
commercial and community television broadcasting licences.
It should be noted that the Bill will not change the conditions
applying to subscription television licences, in that any
broadcasting of 'R' classified programs will still require the
approval of both Houses of Parliament.
Clause 1 of Schedule 1 inserts new subsections 123(3C) and
123(3D). The former provides that industry groups representing open
narrowcasting service providers must ensure that their codes of
practice:
- apply the classification system administered by the Office of
Film and Literature Classification;
- provide for the modification of films so that they are
suitable for broadcasting;
- require that 'M' films be broadcast only between 8.30 pm
and 5 am, or between noon and 3 pm on school days;
- require that films classified as 'MA' be broadcast only
between 9 pm and 5 am; and
- provide for consumer advice on the reasons for
particular classifications of films.
New subsection 3D requires the codes of practice to ensure that
films classified as 'M' or 'MA' do not contain material that goes
beyond the previous 'AO' classification.
Clause 6 of Schedule 1 adds new subsections 11(3) and 11(4) to
Schedule 2 of the Act. The former makes it a condition of class
licences for open narrowcasting services that licensees will not
broadcast programs that have been refused classification or have
been classified as 'X' or 'R' films unless they have been modified.
New subsection 11(4) makes it a condition of subscription
narrowcasting class licences that the licencess will not broadcast
programs that have been refused classification or classified as
'X'.
Kim Jackson
22 October 1997
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
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Last updated: 23 October 1997
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