Bills Digest No. 60   1997-98 Broadcasting Services Amendment Bill (No. 2) 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

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

Purpose

To amend the Broadcasting Services Act 1992 to restrict the availability of X and R-rated material through narrowcasting services.

Background

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:

  1. The community's concerns about the levels of violence in the media, especially sexual violence and of demeaning and exploitative sexual material.
  2. The lack of consensus on the effects of such depections on attitudes and anti-social behaviour.
  3. 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.

Main Provisions

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:

  1. apply the classification system administered by the Office of Film and Literature Classification;
  2.   provide for the modification of films so that they are suitable for broadcasting;
  3.   require that 'M' films be broadcast only between 8.30 pm and 5 am, or between noon and 3 pm on school days;
  4.   require that films classified as 'MA' be broadcast only between 9 pm and 5 am; and
  5.   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'.

Contact Officer and Copyright Details

Kim Jackson
22 October 1997
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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 1328-8091
© Commonwealth of Australia 1997

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: 23 October 1997

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