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Broadcasting Services Amendment Bill (No.4) 1999
Date Introduced: 9 December 1999
House: House of
Portfolio: Communications, Information Technology and the
Commencement: Royal Assent
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.
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
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
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
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
- 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
Occasionally, reports may create difficulties in
Australia's foreign relations with another country. This problem is
the price of a genuinely independent overseas service and is
recognised and accepted by the ABC and the Australian
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.
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,
- comply with determinations made under section 19 of the
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
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
- 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
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
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
- issue a formal warning to the licensee
- suspend the licence (proposed
subsection 121FL(3)), or
- cancel the licence (proposed subsection
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
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
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
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.
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
- 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.
- Mark Day, 'They Were Expendable', The Australian,
Media Supplement (5-11 August 1999), p. 13.
- Explanatory Memorandum, p. 10.
- Australian Broadcasting Corporation, Editorial
Policies (April 1998), p. 18.
- Explanatory Memorandum, p. 10.
- 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.
- Guidelines relating to international broadcast services must be
issued by the ABA under proposed section
- Proposed section section 121FG and 121FH of the
Broadcasting Services Act 1992 and proposed section
108(2)(da) of the Radiocommunications Act 1992.
Kim Jackson and Mark Tapley
16 February 2000
Bills Digest Service
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