Bills Digest No. 59 2002-03
Broadcasting Legislation Amendment Bill (No.2)
2002
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
Endnotes
Contact Officer & Copyright Details
Passage History
Broadcasting
Legislation Amendment Bill (No.2) 2002
Date Introduced:
23 October 2002
House: House of Representatives
Portfolio: Communications, Information
Technology and the Arts
Commencement:
The substantive
provisions (Schedules 1 and 2) commence on the 28th day
after the day on which the Act receives the Royal Assent
Purpose
To provide a new
regulatory framework for community television (CTV) services.
In October 1991 Federal Cabinet decided to refer
the use of the last free-to-air television channel available in
most parts of Australia that could be used to provide a high power
service (the so-called sixth channel) to the House of
Representatives Standing Committee on Transport, Communications and
Infrastructure. The Committee recommended that the sixth channel be
used for community television until a decision was made on its
permanent use. In December 1992 the Government accepted this
recommendation and directed the Australian Broadcasting Authority
(ABA) to undertake a trial of community television. As there was no
provision in the Broadcasting Services Act 1992 (the BSA)
to licence community television services on the sixth channel on a
temporary basis, the ABA used the class licensing regime for open
narrowcasters(1) to facilitate the community television
trial. The apparatus licences were issued to community groups on a
temporary basis with a special condition attached that the services
be provided for community and educational non-profit purposes.
The Minister advised in July 1998 that the sixth
channel could continue to be used by the community broadcasting
sector until the introduction of digital transmission on 1 January
2001.
On 31 May 1999, the Minister unreserved the
sixth channel spectrum in all areas except where licences had been
issued for trial community television services, that is, in the
Sydney, Melbourne, Brisbane, Lismore, Perth, Adelaide, Hobart and
Bendigo areas. This was in recognition of the need to make
available as much vacant spectrum as possible to assist in the
planning of digital television services.
Currently licences are held in the Sydney,
Melbourne, Brisbane, Lismore, Perth and Adelaide areas. The
community group in Hobart withdrew its interest in providing a
trial community television service and the ABA has not renewed the
licence in Bendigo. The current CTV services are listed in the
table below.
Under clause 60C of Schedule 4 of the BSA, the
Minister was required before 1 January 2002 to cause a review to be
conducted into the regulatory arrangements that should apply to the
digital transmission of CTV using spectrum in the broadcasting
services bands and how access to spectrum should be provided free
of charge.
To assist the review process the Minister
directed the ABA to conduct an investigation into the trial of CTV
that has been conducted since 1992. The ABA submitted its report to
the Minister on 31 July 2001. The ABA evaluation concluded
that:
Most CTV operators are financially vulnerable
due to high capital and operating costs. Some are overly reliant on
a limited range of revenue sources, thus increasing their financial
risks. The sale of large amounts of airtime or reliance on
benefactors/creditors may lead to circumstances where the
commercial entity or benefactor involved may, in practical terms,
be taken to control the licence, and who may influence editorial
and access policies. Such circumstances may also lead to a breach
of the licence condition of operation for community and educational
non-profit purposes.
Significant governance and accountability
concerns have been raised about some members of the sector. These
concerns centre on the extent to which operators, using free
spectrum, offer open access to community groups wishing to make
programs.
The temporary nature of the trial and licensing
regime has added to the difficulty CTV operators have had in
obtaining sponsorship and savings from longer term contracting
arrangements--for example, in relation to transmission. The lack of
certainty has made it significantly harder to achieve financial
stability and to generate surpluses for reinvestment in
programs.
CTV audiences are small. Research commissioned
by the ABA indicates that on average only one in four Australians
in CTV transmission areas watch CTV and close to one third of
survey respondents had never heard of CTV services.
The nature and quality of services provided by
operators is highly variable.
The ability to sustain regular transmissions has
been difficult for some operators and is hampered by high
transmission, equipment and maintenance costs.
Poor transmission quality has been a major
problem throughout the trial period. Picture quality has been
hampered by low power transmissions, high maintenance costs, lack
of funding for equipment upgrades, seasonal variations and the
absence of back-up equipment.
CTV original programming fills a niche not met
by other services. However, no operator was able to fill its
airtime with programming produced or provided by community groups,
resulting in a significant amount of 'filler' or retransmitted
programming.(2)
The Government also released a discussion paper
on the digital transmission of CTV on 5 June 2001, and invited
submissions from all interested parties.(3)
The final report was tabled in June
2002.(4) It concluded that:
-
- an immediate or short-term transition to digital transmission
for the CTV sector was not necessary; and
-
- consideration be given to providing an environment in which the
sector will have greater regulatory certainty with stronger
accountability and governance arrangements.
In August 2002 the Department released a
discussion paper on proposed legislative changes to the licensing
arrangements for community television and called for
submissions.(5) This Bill is the outcome of that
process.
Item 1 of Schedule 1 inserts
the definition of a new type of community broadcasting licence CTV
licences in subsection 6(1) of the BSA. These are licences to
provide television services that are not targeted to one or more
remote Indigenous communities. According to the EM, this exclusion
is because licensees providing services to remote Indigenous
communities do not have the resources to meet the higher governance
and accountability requirements placed on CTV licensees.
Item 3 inserts a new section 8B in the BSA which
allows the ABA to determine which communities are remote Indigenous
communities for the purposes of the Act. Such determinations are
disallowable instruments.
Item 4 of Schedule 1
substitutes subsection 81(1) with new provisions ensuring that a
CTV licensee must be a company limited by guarantee within the
meaning of the Corporations Act 2001.
Item 8 of Schedule 1 inserts a
new section 87A in the BSA which contains
additional conditions on CTV licences which are intended to ensure
that CTV licences do not operate in the same way as commercial
television broadcasting services, namely:
-
- licensees must not sell access to more than 2 hours air-time in
any day to any profit making enterprise, unless it is an
educational enterprise; and
-
- licensees must not sell access to more than a combined total of
8 hours air-time in any day to profit making enterprises; and
-
- licensees must not sell access to more than 8 hours air-time in
any day to a particular person or company.
Access to air-time is defined as the right to
select or provide programs during that time (new subsection
87A(12)).
New subsections 87A(7)
to (10) will enable the ABA to
determine other conditions for CTV licences. The ABA is required to
seek public comment before making such determinations, which will
be disallowable instruments.
Item 12 of Schedule 1 replaces
subclause 9(3) of Schedule 2 of the BSA with new provisions which
increase the time available for CTV sponsorship announcements from
5 to 7 minutes in any hour.
Item 15 of Schedule 1 amends
the Radiocommunications Act 1992 to insert a new
subsection 103(4A) which provides that transmitter
licences for CTV licensees will be effective for analog
transmission until 31 December 2006, or any other date determined
by the Minister. Such a determination is a disallowable
instrument.
Note: 31 December 2006 is the end date for the
moratorium for the allocation of new commercial television
licences, as provided by section 28 of the BSA.
In assessing the suitability of an applicant for
a community broadcasting licence currently the ABA is only entitled
to take into account:
-
- the business record of the company
-
- the company s record in situations requiring trust and
candour
-
- the business record of the chief executive and each director
and secretary of the applicant
-
- the record in situations requiring trust and candour of each
such person, and
-
- whether the company, or its key officers has been convicted of
an offence against the BSA or the regulations.
Item 1 of Part 1 of
Schedule 2 amends subsection 83(3) of the BSA to broaden
the range of factors that the ABA may take into account when
deciding if an applicant is suitable beyond the items listed in the
subsection.
Items 4 and 5 amend section 91
of the BSA to enable the ABA to refuse to renew a community
broadcasting licence if the licensee does not meet the criteria for
the allocation of a new licence. Items 6 and 7
amend subsection 123(1) so that community broadcasters serving
Indigenous communities can develop their own codes of practice.
Item 10 amends subclause 9(2) of Schedule 2 of the
BSA to add two new conditions to the standard conditions for
community broadcasting licences. These new conditions state that
the licensee must provide the service for community purposes and
must not operate the service for profit.
Note: the amendments in Part 1 of
Schedule 2 of the Bill relate to all community
broadcasting licences, not just CTV licences (ie. they also apply
to community radio licences).
Schedule 3 amends the
Broadcasting Services (Transitional Provisions and
Consequential Amendments) Act 1992 to reflect the decision of
the High Court in Australian Capital Television v
Commonwealth (1992) 177 CLR 106. This decision found that
sections of the Broadcasting Act 1942 which prohibited
political advertisements in election periods were invalid.
-
- Section 18 of the BSA defines open narrowcasting services as
broadcasting services whose reception is limited:
-
- by being targeted to special interest groups, or
-
- by being intended only for limited locations, for example,
arenas or business premises, or
-
- by being provided during a limited period or to cover a special
event, or
-
- because they provide programs of limited appeal, or
-
- for some other reason.
-
- This summary is drawn from Department of Communications,
Information Technology and the Arts, The Future of Community
Television , June 2002.
- The Discussion Paper is available at: http://www.dcita.gov.au/Article/0,,0_1-2_1-4_105963,00.html
.The submissions can be obtained from: http://www.dcita.gov.au/Article/0,,0_1-2_1-4_103007,00.html
- Department of Communications, Information Technology and the
Arts, The Future of Community Television , June 2002. The report is
available at: http://www.dcita.gov.au/Article/0,,0_1-2_1-4_108299,00.html
- The Discussion Paper and submissions can be obtained from:
http://www.dcita.gov.au/Article/0,,0_1-2_1-4_111240,00.html
Kim Jackson
13 November 2002
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2002
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