Bills Digest No. 121  1999-2000

Numerical Index | Alphabetical Index

Broadcasting Services Amendment Bill (No.4) 1999

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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Broadcasting Services Amendment Bill (No.4) 1999

Date Introduced: 9 December 1999

House: House of Representatives

Portfolio: Communications, Information Technology and the Arts

Commencement: Royal Assent

Purpose

To amend the Broadcasting Services Act 1992 (the BSA) and the Radiocommunications Act 1992 (the RA) to establish a broadcasting licence regime for international broadcasting services transmitted from Australia.

Background

Policy History

On the 16 April 1999 the Minister for Communications, Information Technology and the Arts, Senator the Hon. Richard Alston, and the Minister for Foreign Affairs, the Hon. Alexander Downer, issued a joint media release announcing that the Government would legislate to regulate international broadcasting services transmitted from Australia.⁽¹⁾

Currently, international broadcasters are only required to have the appropriate transmitter licence from the Australian Communications Authority (ACA). The content of international broadcasting services is not subject to regulation.

On the 7 December 1999 the Government introduced the Broadcasting Services Amendment Bill (No.3) 1999 in the House of Representatives. The Bill dealt with a number of broadcasting issues, including the regulation of international broadcasting services (Schedule 3 of the Bill). The Opposition suggested that Schedule 3 be excised from the Bill and be dealt with as separate legislation, as it merited substantive deliberation. The Government accepted this suggestion and introduced the Broadcasting Services Amendment Bill (No.4) 1999 containing the provisions relating to international broadcasting services.

Neither the original policy announcement nor the material accompanying the legislation refer to any specific international broadcasting proposals or experiences that might indicate a need for the proposed scheme. However, there has been a significant expansion of international broadcasting in the Asia-Pacific region over the last decade and the increasing globalisation of the media should see these developments continue. The Senate Foreign Affairs, Defence and Trade References Committee report, The Role and Future of Radio Australia and Australia Television (May 1997) noted that there were thirty-eight international radio broadcasters targeting the region, and over fifty satellite television services (only ten of which were government-owned).

According to newspaper reports, there have been a number of expressions of interest from international broadcasters in leasing the former Radio Australia facility on the Cox Peninsular. These include the BBC, the US Government backed Radio Free Asia and a religious organisation called Heralding Christ Jesus Broadcasting.⁽²⁾

The Proposed Regulatory Regime

Item 12 of the Bill defines international broadcasting services as those broadcasting services targeted at audiences outside Australia which use a radiocommunications transmitter located in Australia, whether alone or in combination with other means. However, the definition specifically excludes the following:

• services provided by the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS), and
• services which deliver programs packaged outside Australia and for which all relevant programming decisions are made outside Australia, which use an Australian earth station for retransmission to a satellite for delivery of the service.

According to the Explanatory Memorandum, the latter exemption is intended to ensure that the new regime will not affect any commercial proposals to make Australia 'a programming up-link hub for broadcasting services delivered by satellite'.⁽³⁾

The objective of the legislation is to provide a licensing framework for international broadcasting services transmitted from Australia whilst safeguarding Australia's national interest. The Bill will require the providers of international broadcasting services to be licensed by the Australian Broadcasting Authority (ABA). The ABA will be required to refer applications for such licences to the Minister for Foreign Affairs, who will have the power to direct the ABA not to allocate the licence if he or she considers that the proposed service is likely to be contrary to Australia's national interest. The Minister for Foreign Affairs will also be able to direct the ABA to warn a licensee, and to suspend or cancel a licence if he or she considers that the service is contrary to Australia's national interest. The Minister is required to have particular regard to the likely effect on Australia's international relations when determining whether a broadcast is contrary to the national interest. The Bill also contains amendments to the Administrative Decisions (Judicial Review) Act 1977 to ensure that the Minister is not required to give reasons for these determinations. Consequently, the capacity of an aggrieved person to identify deficiencies in the Minister's reasoning that could form the basis of a legal challenge is considerably impaired.

The Minister's Veto Powers

The most controversial aspect of the Bill concerns the role of the Minister for Foreign Affairs in vetting and approving international broadcasting services. These proposals can be questioned on a number of grounds, particularly when considered in the light of the proposed exemptions from the scheme and the role of Radio Australia.

1. Exemptions and the Veto Power

The powers given to the Minister for Foreign Affairs to prevent the broadcasting of Australian material to overseas audiences can be contrasted with the blanket exemption given to overseas satellite broadcasts which use Australian facilities, and which might also broadcast material that is contrary to Australia's national interest from time-to-time. The efficacy of the new regime would thus seem to depend on the willingness of neighbouring countries to distinguish between those broadcasts which originate in Australia and those which merely depend on Australian facilities to reach their target. It is unlikely that such a distinction would be maintained if a broadcast was so offensive as to threaten the country's international relations. It thus might be argued that if the preservation of Australia's international relations is a sufficient reason for the introduction of a ministerial veto over Australian international broadcasting, then such a power should also apply to all broadcasts that depend on Australian facilities.

Alternatively, if the preservation of Australia's international relations is not a sufficient reason to interfere with commercial proposals to make Australia a satellite up-link hub, then it could also be argued that it is an inadequate justification for the imposition of a ministerial veto power over Australian international broadcasters.

2. Role of Radio Australia

As noted above, the Bill's regulatory regime will not apply to the ABC. The ABC, through Radio Australia, broadcasts news, current affairs and general programs to audiences throughout Asia and the Pacific. Radio Australia is not subject to Government vetting of its broadcasts. The ABC's Editorial Policies makes the following comment with regard to Radio Australia broadcasts:

The Bill's provisions will result in non-government international broadcasters being subject to government approval while the government's own broadcaster remains independent of such controls. It might be argued that if neighbouring countries can cope with the Radio Australia situation, then they should be able to appreciate that the Australian Government will not be responsible for the contents of international non-government broadcasts that are licensed by its authorities. On this view, there would be no need for the Minister for Foreign Affairs to approve or vet international broadcasts from Australia and such services would be licensed on a similar basis to other commercial and community broadcasters.

Main Provisions

What are International Broadcast Services?

Item 12 inserts new section 18A which defines the type of services that will be defined as 'international broadcasting services' and therefore determines the scope of the regulatory regime introduced by the Bill. International broadcasting services are broadcasting services which are targeted, to a significant extent, to audiences outside Australia. To come within the ambit of the proposed regime broadcasting services must also:

• be delivered by the use of a radiocommunications transmitter, and
• comply with determinations made under section 19 of the BSA.

Section 19 allows the ABA to determine additional criteria for the purpose of distinguishing between categories of broadcasting services.

Proposed subsection 18A(2) provides that broadcasting services provided by the ABC, SBS, and an 'exempt broadcasting service' are not international broadcasting services for the purposes of the Act.

Proposed subsection 18(A)(3) sets out the criteria for an 'exempt broadcasting service'. Programs broadcast by the service must be packaged outside Australia and all programming decisions must be made overseas. In addition, the service must be delivered, at least in part, by satellite and must be transmitted to Australia for the sole purpose of retransmission to a satellite.

As mentioned above, the stated rationale for this exemption is to preserve potential commercial benefits of Australia becoming a 'programming up-link hub.'⁽⁵⁾ In putting such services beyond the scope of the proposed regime, the legislation appears to elevate commercial interests above the national interest.

The Regulatory Regime

The main feature of the Bill is that it inserts new Part 8B into the BSA which regulates international broadcasting services. Under the proposed framework there is a two-stage assessment process designed to filter applications for international broadcasting licences.

Initially the ABA must determine whether an applicant is a company formed in Australia or an external territory and is 'suitable'(proposed section 121FB).

Under proposed section 121FC the ABA may consider a company to be unsuitable if it is satisfied that granting a licence would lead to an offence against the BSA or its regulations, or a breach of licence conditions.

In deciding whether a company poses such a risk the ABA may take into account:

• the business record of the company and its controlling personnel,
• the record of the company and its controllers in situations requiring trust and candour, and
• whether the company or controlling persons have previously breached the BSA or its regulations.

Decisions of the ABA concerning the suitability of an applicant are subject to review by the Administrative Appeals Tribunal (AAT) under amendments proposed by Item 23.

If the ABA is satisfied that an applicant is an eligible company and suitable, the ABA must refer the application to the Minister for Foreign Affairs with a report about whether the applicant meets the guidelines. The ABA is charged with issuing guidelines relating to international broadcasting services under proposed section 121FP.

The Minister for Foreign Affairs applies the second filter of applications under the proposed section 121FD. The Minister may direct the ABA not to allocate a international broadcasting licence to an applicant if, in the opinion of the Minister, it is likely to be 'contrary to Australia's national interest'.

While the term 'national interest' is not defined, proposed subsection 121FD(3) states that the Minister must take in to account the likely effect of the proposed services on Australia's international relations. Proposed subsection 121FD(4) states that the Minister may also have regard to a report of the ABA on whether the applicant complies with the international broadcasting guidelines. In considering the requirements of the national interest, the Minister is not limited to matters raised by the ABA report.

In the event that the Minister informs the ABA that he or she has no objection to the grant of an international broadcasting licence to an applicant, the licence must be allocated by the ABA (proposed section 121FE).

Item 1 of the Bill amends the Administrative Decisions (Judicial Review) Act 1977. The effect of the amendment is that the Minister for Foreign Affairs will not have to provide reasons for decisions made under Part 8B of the BSA.

Proposed section 121FF inserts licence conditions for holders of international broadcasting licences. Licensees must:

• make a record of programs broadcast,
• retain a copy of the record for 90 days, and
• make the record available to ABA without fee on request.

Proposed Division 4 of Part 8B deals with penalties for a breach of the regulatory regime.

A person who intentionally provides an international broadcasting service without a licence and is reckless as to that fact, is liable under proposed subsection 121FG(1) to a fine of 20,000 penalty units ($2,200,000). A person who contravenes proposed subsection 121FG(1) is guilty of a separate offence for each day of contravention. The potential severity of this penalty is reduced by section 213 of the BSA which provides that the maximum penalty for each day that an offence is a continuing offence is 10% of the maximum penalty on the first day.

The ABA may under proposed section 121FH write to a person directing them to cease conducting an international broadcasting service. A person who fails to comply with such a request is punishable by a fine of 20,000 penalty units. As with proposed section 121FG, each day that the section is breached constitutes a separate offence.

IBS licensees who intentionally breach a condition may be fined 2,000 penalty units ($220,000) under section 121FJ

Proposed section 121FK empowers the ABA to cancel the licence of broadcaster who has not commenced a service within two years of receiving a licence. In the event that the ABA decides on this course of action, natural justice must be afforded to the licensee in the form of an opportunity to make representations to the ABA. A decision of the ABA to cancel a licence is subject to review by the AAT under the amendments proposed by item 23.

If the ABA cancels a licence it must notify the Australian Communications Authority (ACA). The Bill also amends the Radiocommunications Act 1992 which is administered by the Australian Communications Authority. Item 29 providers that the ACA must not issue a transmitter licence for an international broadcasting service unless the company has a licence. In addition, the ACA must cancel a transmitter licence held by companies who have surrendered their international broadcasting licence or have had their licence cancelled (item 34).

Proposed section 121FL gives the Minister for Foreign Affairs a continuing power to take action to protect the national interest in relation to international broadcasting services after a licence has been granted.

If the Minister is of the view that the service is contrary to the national interest, the Minister may direct the ABA to:

• issue a formal warning to the licensee (proposed subsection 121FL(1)),
• suspend the licence (proposed subsection 121FL(3)), or
• cancel the licence (proposed subsection 121FL(5)).

Licensees will be given the opportunity to make a submission to the ABA (and through it to the Minister) when it is proposed that their licence be cancelled (proposed subsection 121FL (6)). However no such opportunity will be accorded where it is proposed that the licence should be suspended despite the fact that such a measure may have serious financial implications for a broadcaster.

In any event, licensees may find it difficult to frame a submission when, as noted above, the Minister will not be required to disclose the reasons why he or she decided to take a particular action.⁽⁶⁾

Proposed sections 121FM and 121FN empower to Minister for Foreign Affairs to seek the assistance of the ABA in exercising his or her powers under the Act. The Minister may direct the ABA to prepare a report about whether a particular licensee complies with the guidelines issued by the ABA⁽⁷⁾ and to supply the broadcasting records of a licensee.

The ABA is not responsible for monitoring and investigating complaints about an international broadcasting service unless it falls into another category of service, for example, a commercial broadcasting service, community broadcasting service or a subscription broadcasting service (proposed section 121FR). Under proposed section 11A of the BSA it is possible for a international broadcasting service to fall into another category of broadcasting services. In such a case the broadcaster will be required to met the regulatory requirements for both categories (proposed subsections 12(3)-(6)).

The Bill is silent about whether the Department of Foreign Affairs and Trade will monitor or accept complaints about international broadcasts.

Item 36 of the Bill deals with transitional provisions that cover entities conducting international broadcasting services prior to the commencement of the new regime. The provisions of the Bill that prohibit international broadcasting without a licence⁽⁸⁾ will not apply to an existing broadcaster until 30 days after commencement of the legislation.

If an existing broadcaster applies for a licence within 30 days of the commencement of the legislation, the prohibitions will not apply until the licence is allocated or the application is formally rejected.

Concluding Comments

The Government has not articulated the circumstances that have given rise to the need for the scheme proposed by this Bill. It has not identified any situation where Australia's national interest, specifically the country's good relations with foreign powers have been prejudiced by programs transmitted by international broadcasters.

Furthermore it is doubtful whether the proposed scheme will be successful in its stated objective of protecting the national interest. The government-owned but independent broadcasters (the ABC and SBS) and overseas satellite broadcasters that use Australian facilities will not be subject to vetting by the Minister for Foreign Affairs. The basis for this distinction is not transparent.

Endnotes

1. Senator the Hon Richard Alston, Minister for Communications, Information Technology and the Arts and the Hon Alexander Downer MP, Minister for Foreign Affairs, 'New Licences for International Broadcasting', Media Release 51/99, April 16 1999.
2. Mark Day, 'They Were Expendable', The Australian, Media Supplement (5-11 August 1999), p. 13.
3. Explanatory Memorandum, p. 10.
4. Australian Broadcasting Corporation, Editorial Policies (April 1998), p. 18.
5. Explanatory Memorandum, p. 10.
6. Item 1 of the Bill exempts the Minister for Foreign Affairs from having to give reasons for a decision taken in exercising powers under the new Part 8B of the BSA.
7. Guidelines relating to international broadcast services must be issued by the ABA under proposed section 121FP.
8. Proposed section section 121FG and 121FH of the Broadcasting Services Act 1992 and proposed section 108(2)(da) of the Radiocommunications Act 1992.

Contact Officer and Copyright Details

Kim Jackson and Mark Tapley
16 February 2000
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.

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ISSN 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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