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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Broadcasting Services Amendment Bill (No.3)
1999
Date Introduced: 6 December 1999
House: House of Representatives
Portfolio: Communications, Information Technology and the
Arts
Commencement: Royal Assent, apart from Part 2 of Schedule 1,
which commences on 1 July 2000 and Part 3 of Schedule 1, which
commences on 1 July 2001.
The purpose of the Bill is to:
-
- require subscription television licensees to meet certain
levels of expenditure on Australian drama programs
-
- limit the international obligations of the Australian
Broadcasting Authority (ABA) to the protocol on trade in services
of the Australia New Zealand Closer Economic Relations trade
agreement (the CER trade in services protocol), and
-
- regulate international broadcasting services transmitted from
Australia.
-
Legislative History
This Bill was introduced to the House of
Representatives on 6 December 1999 and passed (with amendments) the
following day. It was introduced to the Senate on 9 December 1999
and passed on the same day. The major amendment to the Bill
involved the excision of Schedule 3, which contained the provisions
relating to international broadcasting services. Schedule 3 was
recast as the Broadcasting Services Amendment Bill (No.4) 1999 and
is still before Parliament.(1)
Drama Programs on Pay Television
Section 102 of the Broadcasting Services Act
1992 (the BSA) required subscription television licensees
providing predominantly drama services to spend at least ten per
cent of their annual program budget on new Australian drama
programs. On 2 April 1998 the Minister for Communications, the
Information Economy and the Arts announced the results of a review
of the Australian content rules for pay TV. The review concluded
that s.102 was effectively unenforceable because channel providers,
rather than pay TV licensees, are responsible for most expenditure
on programs. In March 1999 the Government announced that it would
make the ten per cent Australian content quota for pay TV drama
enforceable.
In lieu of an enforceable provision, the
Australian Broadcasting Authority (ABA) has developed guidelines
for the voluntary implementation of the licence condition, with
licensees and channel providers reporting annually on Australian
drama expenditure. Reported expenditure by the predominantly drama
channels for the last three years has been as follows:
|
1995-96
|
$1 740 678 (11 channels)
|
|
1996-97
|
$3 242 754 (15 channels)
|
|
1997-98
|
$8 173 504 (16 channels)
|
.
According to the ABA, only four of the sixteen
channels complied with the ten per cent requirement in 1997-98.
Schedule 1 of the Bill amends the BSA to ensure
that pay TV licensees providing TV drama services spend ten per
cent of annual program expenditure on Australian or New Zealand
productions. The ten per cent requirement is to be calculated by
reference to the expenditure incurred by channel providers if
necessary.
The ABA's International Obligations
On 26 October 1996 Project Blue Sky and five New
Zealand production companies commenced proceedings in the Federal
Court of Australia. They took the view that the Australian
Broadcasting Authority's Australian television content standard
contravened Australia's treaty and obligations under the Trade in
Service Protocol to the Australia New Zealand Closer Economic
Relations (CER) Trade Agreement. Project Blue Sky claimed the ABA's
standard did not accord national treatment to New Zealand programs
and commenced legal proceedings against the ABA.
On 28 April 1998 the High Court ruled that the
ABA's Australian Content Standard was 'unlawfully made' as it was
inconsistent with Australia's treaty obligations under the
CER.(2) The ABA was required to revise the standard. In
July 1998 the ABA released a discussion paper that identified a
range of options for implementing the Court's ruling and formed the
basis for initial submissions and consultation. In November the ABA
released a draft standard and sought further comment from
interested parties. The new standard was finally released on 18
February and took effect on the 1 March 1999. The new standard
treats New Zealand and Australian/NZ programs as equal to
Australian programs for the purpose of compliance with the
standard. The new standard will be closely monitored by the ABA and
reviewed after two years of operation.
On the 19 March 1999 the Minister for
Communications, Information Technology and the Arts, Senator
Alston, announced that the Government would amend the
Broadcasting Services Act 1992 to protect the level of
Australian content on television. This amendment would ensure that
foreign access to local content is confined to New Zealand.
Schedule 2 of the Bill amends the BSA to limit
the scope of international obligations applicable to the ABA to the
CER Trade in Services Protocol.
Schedule 1 inserts a new Division
2A into part 7. The division imposes licence conditions on
subscription television broadcasters to ensure minimum levels of
expenditure on 'eligible drama programs'.
An eligible drama program is defined in
proposed section 103B as a drama program that
is:
-
- an Australian program
-
- an Australian/ New Zealand program, and
-
- a New Zealand program or an Australian official
co-production.
All these definitions are elaborated on in the
Australian content standard.(3) As noted above the
definition reflects the High Court decision in the Project Blue Sky
Case.
Under proposed section 103N, if
a licensee provides a subscription TV drama service and a person is
a channel provider to the licensee it is a condition of the licence
that the channel provider's new eligible drama expenditure exceeds
ten per cent of the channel provider's total program expenditure in
relation to the channel.
The term 'channel provider' is defined in
proposed section 103C to include a person who:
-
- packages a channel and
-
- supplies the licensee with a channel and
-
- carries on business in Australia that involves the supply of a
channel.
A breach of new section 103(1)
will not result in penalties being applied under Division 3 Part 10
of the Act. This is because the Bill proposes that any shortfall in
drama expenditure can be made up in the following year (new
section 103P and 103Q). Penalty provisions will apply if
the expenditure is not made up in the following year.
Proposed subdivisions C to G
also impose the ten per cent new eligible drama expenditure
requirement on licensees in situations where programs are supplied
by a person who is not a channel provider. Examples of such persons
include pass through providers (ie a channel provider based
overseas)(4), part-channel providers(5),
part-pass through providers(6) and the licensee.
Schedule 2 is intended to limit
the implications of the High Court's decision in the Project Blue
Sky case. Item 2 of the schedule amends paragraph
160(d) which currently provides that the ABA is to perform its
functions in a manner consistent with Australia's obligations under
any convention to which Australia is a party or any agreement
between Australia and a foreign country. The proposed new paragraph
provides that the ABA must perform its functions in accordance with
Australia's obligations under the Closer Economic Relations Trade
in Services Protocol with New Zealand. In his second reading speech
the Minister noted that the amendment 'will retain the special
position of New Zealand, while making it clear that there are no
flow-ons under the amended section to other
treaties.'(7)
A discussion on the provisions of
schedule 3 of the Bill which purport to establish
a regulatory framework for international broadcasting services may
be found in the Bills Digest No.121 1999-2000.
- See Bills Digest No 121 1999-2000 (http://www.aph.gov.au/library/pubs/bd/1999-2000/2000BD121.htm).
The Senate Foreign, Affairs, Defence and Trade Legislation
Committee issued its report on the Bill on April 4 2000.
http://www.aph.gov.au/senate/committee/fadt_ctte/broadcasting/broadcasting%20services.pdf
- Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 153 ALR 490.
- This Standard is made by the ABA under section 122 of the
BSA.
- The term 'pass through provider' is defined proposed
section 103E.
- Defined in proposed section 103D.
- Defined in proposed section 103F.
- House of Representatives, Debates, 6 December 1999, p.
9592.
Kim Jackson and Mark Tapley
20 April 2000
Bills Digest Service
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