Bills Digest no. 37 2006–07
Communications Legislation Amendment (Enforcement
Powers) Bill 2006
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
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage
History
Communications Legislation Amendment
(Enforcement Powers) Bill 2006
Date introduced: 14
September 2006
House: The House of
Representatives
Portfolio: Communications,
Information Technology and the Arts
Commencement: The
operative provisions of the Communications Legislation Amendment
(Enforcement Powers) Bill 2006 commence on receiving Royal Assent.
Schedule 1 will commence on a day to be fixed by Proclamation or no
later than the day after three months from Royal Assent.
The Bill amends the Broadcasting Services Act
1992 and the Radiocommunications Act 1992 to broaden
the range of enforcement powers available to the Australian
Communications and Media Authority.
The Australian Communications and Media Authority (ACMA) is an
amalgamation of the Australian Communications Authority (ACA) and
the Australian Broadcasting Authority (ABA). This took effect on 1
July 2005. In this digest, both ABA and ACMA are used depending on
the context. Where ABA is used, it can generally be read as
referring to the ACMA, as it now is.
Initially, the ABA and the ACA together shared the
responsibility for the regulation of broadcasting,
telecommunications and, to a limited degree, the internet, with
the:
- ACA being responsible for regulating telecommunications and
radiocommunications, including managing the radiocommunications
spectrum other than the broadcasting services bands (BSB), and
- ABA being accountable for planning and regulating broadcasting
services bands within the radiofrequency spectrum, broadcast
licensing, and online and Australian content functions.
The idea of merging the two regulators was first floated by the
Productivity Commission in its Inquiry Report No. 11
Broadcasting which was released by the Australian
Government in April 2000.(1) This regulatory
convergence was a response to convergence of the previously
separate technologies, markets and industry participants brought
about by digital technologies. It was thought that a single agency
would be more likely to deliver improved coordination of regulatory
functions and greater flexibility for industry, while meeting the
expectations of viewers and listeners and maintaining high levels
of quality and diversity.(2)
ACMA was established by the Australian Communications and
Media Authority Act 2005 (the ACMA Act). It is an independent
statutory body with powers to regulate telecommunications,
spectrum, broadcasting, content and datacasting (Division 2 of the
ACMA Act).
In addition, ACMA is charged with the responsibility to monitor
the broadcasting, datacasting and internet industries. Under the
Broadcasting Services Act 1992 (the BSA), the
ACMA has to assess whether the objects of the BSA are achieved
consistent with the regulatory policy applicable to these
industries. The objects of the BSA are set out in section 3 of the
BSA. They specify the outcomes Parliament intended from the
regulation of broadcasting in Australia, facilitate decision making
consistent with the regulatory policy of the BSA and guide its
administration.
Under the BSA, primary responsibility for industry rules that
ensure programs reflect community standards, and for handling
complaints about program content, rests with
broadcasters.(3) The BSA requires industry groups
representing commercial, community and narrowcasting services to
develop, in consultation with ACMA, Codes of Practice. Some of the
aims of these Codes are to:
- promote accuracy and fairness in news and current affairs
programs (paragraph 123(2)(d) of the BSA)
- cover broadcasting time devoted to advertising (subsection
123(2)(f) of the BSA), and
- deal with any other matters concerning program content that are
of concern to the community (subsection 123(2)(l)).
ACMA monitors compliance with Codes of Practice and investigates
unresolved complaints from the public.
As a result of a Commercial Radio Inquiry 2000(4)
(usually described as the cash for comment inquiry), the ABA
concluded its existing powers lack the flexibility and force to
respond properly to serious Code breaches and that it lacked
sanctions that could take immediate effect. Further, subsequent
events helped to confirm these conclusions.
The Commercial Radio Inquiry 2000 arose after it was revealed
that two prominent Sydney radio talkback hosts on Sydney radio
station 2UE had been paid to provide favourable comment to
companies without disclosing this arrangement to listeners. Though
both hosts initially denied any wrongdoing, they later defended
their actions, claiming as they were not employed as journalists,
they had no duty of disclosure or of journalistic integrity. The
ABA found the hosts and their radio station to have committed 90
breaches of the industry code and five breaches of the station s
license conditions.
As a result of the Commercial Radio Inquiry, the ABA imposed two
new licence conditions as a result of these breaches. They were
intended to encourage disclosure of sponsors and to foster a
culture of compliance with the regulatory regime.(5)
However, despite the imposition of further licence conditions,
the ABA continued to have concerns about the conduct of various
radio stations and their presenters. For instance,
- In November 2002, the ABA began investigating a public
complaint from the Communications Law Centre which alleged that the
radio station had breached the licence condition relating to
disclosure and compliance.(6)
- In October 2003, the ABA released research that indicated there
was strong community support for the requirement for on-air
disclosure of commercial agreements by talkback presenters. More
than three-quarters of commercial AM radio listeners said it is
important to be informed by radio presenters about their personal
sponsors.(7)
- In December 2003, the ABA concluded that the radio station had
breached the broadcasting disclosure standard(8) on 19
occasions and the special licence condition, imposed after
Commercial Radio Inquiry, six times. ACMA noted that listeners are
entitled to know if relationships exist between radio presenters
and third parties.(9)
- The ABA announced it would refer the matter to the Commonwealth
Director of Public Prosecutions (DPP) for its
consideration.(10) Additionally, it proposed to impose a
further licence condition on the radio station.(11)
- In June 2004, the ABA received advice from the DPP that there
would be no reasonable prospect of convicting the licensee in
relation to breaches of the commercial radio disclosure standard
and that the matter would not be approved for
prosecution.(12) Acting ABA chair, Lyn Maddock,
commented:
The burden of proof in criminal cases is much
higher than in civil cases and for a successful prosecution in this
case it would have to be proven that Radio 2UE engaged in the
conduct with the requisite criminal intention.
This outcome highlights how difficult it is for
the ABA to impose appropriate sanctions when it finds breaches of
licence conditions and program standards.
The only civil law-based remedies available to ABA
are imposition of further licence conditions (which must not be
punitive), or suspension or cancellation of the broadcaster s
licence. The ABA has imposed a stringent monitoring condition on
Radio 2UE, but would always be extremely reluctant to deprive the
public of a popular service by suspending or cancelling the
broadcaster s licence.
The present case demonstrates the forensic
difficulty of mounting a criminal prosecution under the existing
law.(13)
To remedy this situation, the final report of the Commercial
Radio Inquiry made several recommendations, including giving ACMA
powers to:
- impose advertising free periods
- designate a period of time a presenter is prohibited from
broadcasting
- require on-air corrections or the findings of ACMA
investigations to be broadcast
- impose a civil penalty, and
- approach the Federal Court for an
injunction.(14)
Further proposals for changes to assist in the prevention and/or
enforcement of future breaches of Codes of Practice were identified
in the Final Report of the Australian Broadcasting Authority s
Commercial Radio Inquiry: Proposed Options for Legislative Reform
and Related Issues, prepared in 2001 by the Department of
Communications, Information Technology and the Arts (DCITA). These
recommendations were not well received by the
industry.(15)
Ramsay Report(16)
While acknowledging that the regulatory framework in the BSA had
generally operated well, experiences such as the case at the heart
of the Commercial Radio Inquiry had led the ABA to conclude that
its lack of flexibility in enforcement measures and, in particular,
a lack of graduated powers, prevented it dealing effectively with a
variety of non compliance issues.(17)
According to ACMA, the major areas of concern were:
- regulating the categories of services in the BSA, in particular
open narrowcasters providing commercial broadcasting services
- the lack of remedies for breaches of codes of practice,
and
- lack of appropriate sanctions for licence condition breaches,
including breaches of standards.(18)
Therefore, in 2004, the ABA commissioned Professor Ian Ramsay to
examine the effectiveness of its existing enforcement powers and to
suggest options which would allow it to act more effectively in
dealing with the broadcasting industry.
In his Report, Professor Ramsay agreed that the ABA s
enforcement powers were deficient in a number of respects. In
particular, he concluded that the Authority lacks access to
flexible, middle range administrative powers and civil penalties.
Such powers and penalties are available to other regulators in
Australia and overseas, including a number of measures available to
the ACA under the Telecommunications Act 1997.
Professor Ramsay noted several areas of concern in relation to
the ABA s powers. These included:
- Codes of Practice a lack of
effective enforcement mechanisms for serious and/or repeated
breaches of Codes by commercial radio and television licensees.
Existing sanctions are of limited use, as they often result in
punishment of not only the licensee but also indirectly of the
public which is deprived of a broadcast
- licence conditions enforcement
powers available are not only limited but are also very severe in
that they involve either a referral to the DPP to instigate a
criminal prosecution or the cancellation or suspension of the
licence
- enforcing the categories of broadcasting
services open narrowcasters operate under a class licence,
so the ABA cannot suspend or cancel their licences. Criminal
penalties can be imposed for provision of a commercial broadcasting
service without a licence as well as provision of other types of
broadcasting services without an appropriate licence. The BSA also
provides for the issue of notices requiring a person found to be
providing an unlicensed service to desist from providing that
service and there are criminal penalties for breaching a notice.
However, the ABA has found its penalty powers to enforce the
categories of broadcasting services ineffective in those cases
where a service provider has not complied
- notification provisions
licensees are often late in notifying the ABA about who controls
licences and who are the directors of the licensee companies.
Criminal penalties can apply for breaches of these notification
provisions. However, criminal penalties can be inappropriate if the
breach is inadvertent
- annual financial returns
licensees are often late in lodging annual financial returns. A
breach of the provisions requiring lodgement of annual financial
returns can lead to the imposition of criminal penalties. However,
the imposition of such penalties may be inappropriate for
inadvertent breaches, and
- payment of licence fees licence
fees for both commercial television licensees and commercial radio
licensees are due on 31 December of each year (section 6 of the
Television Radio Licence Fees Act 1964). According to
information received from the ABA, on average 14 commercial
broadcasting licensees pay their licence fee after the due date
each year. The penalty for non-payment of licence fees is an
additional fee.(19) In the case of very small commercial
radio licensees, which pay only small licence fees, this does not
serve as an incentive for compliance.(20)
To enhance the ABA s enforcement powers, Professor Ramsay
proposed that the ABA should:
- have the power to:
- accept enforceable undertakings in connection with a matter in
relation to which it has a function or power under the BSA,
and
- seek injunctive relief from the court for a breach of section
137 of the BSA(21)
- retain the right to refer sufficiently severe breaches of the
BSA to the DPP for criminal prosecution(22)
- be given the power to issue infringement notices for breaches
of the control notification provisions of the BSA and the
requirement in the BSA to lodge annual financial reports
- have the power to impose a penalty as an additional fee or
issue an infringement notice specifying payment of $1500 where
commercial television and radio licensees pay licence fees
late,(23) and
- be given the power to order a licensee to broadcast a statement
relating to the findings of an ABA investigation finding a breach
or breaches of a code of practice or a licence condition. This
power of the ABA to order on-air statements by broadcasters would
not apply to national broadcasters.
In addition, Professor Ramsay recommended that
breaches of certain provisions of the BSA be subject to civil
monetary penalties. In particular, civil monetary penalties to be
imposed by a court of competent jurisdiction should apply
where:
- an open narrowcaster provides a service
- this service is not in accordance with the relevant class
licence, and
- there is a breach of specified licence
conditions.(24)
In November 2005, DCITA issued a discussion paper, seeking
comments on the recommendations in the Ramsay Report. DCITA
received the following submissions:
The Australian Broadcasting Corporation (ABC) argued against any
increased powers for ACMA in relation to national broadcasters as
they were potentially in conflict with the provisions of the
Australian Broadcasting Corporation Act 1983 (ABC
Act).
The ABC considered that the current system worked well, arguing
that it simultaneously provides for ACMA investigations of alleged
breaches of the ABC s Code of Practice, while reflecting the ABC s
editorial independence and accountability to the Australian
Parliament and the people of Australia. In addition, the ABC noted
it established:
an effective, multi-tiered complaints-handling
process to deal with concerns expressed by members of the public
about its programming, and publishe[d] the results of those
contacts on a quarterly basis.(25)
The Australian Film Commission (AFC)
was supportive of enhanced regulatory powers enabling ABA to
introduce a middle range of sanctions for breaches of the BSA. The
AFC considered it:
a necessary corollary of increased regulatory
powers would be improved monitoring and reporting of data
pertaining to the performance of broadcasters, without which it
would be impossible to ensure consistent and reliable detection and
correction of any breach.(26)
Free TV supported retention of the
existing co-regulatory approach considering it:
flexible, responsive to community views,
transparent and accessible for viewers. Broadcasters have a
constructive and transparent relationship with the ABA,
characterised by high levels of compliance with the Code, Standards
and Licence Conditions, and a non-litigious approach to resolving
disputes. Broadcasters would be concerned if the introduction of
stronger enforcement powers changed the cost-effective and
efficient nature of co-regulation and led to the more
interventionist approach that characterised the pre-1992 regulatory
system.(27)
The Commercial Radio Association
(CRA) argued that, if implemented, the proposed reforms would:
take broadcast regulation back to the
over-regulated, highly litigious regime that existed prior to the
[BSA]. Under the previous regime, the Australian Broadcasting
Tribunal (ABT) used a highly interventionist and
legalistic approach to regulation of the broadcast sector. That
regime has been widely discredited.(28)
Certain sectors of the industry are not fully convinced that
increasing ACMA s powers will be beneficial. As indicated above,
there is concern that introducing more regulatory options will
represent a return to the regulatory regime that existed prior to
the passage of the BSA in 1992.(29)
Generally the introduction of more flexible sanction options
will allow ACMA to impose a range of penalties more appropriate to
offences and to negotiate with licensees to produce better
compliance outcomes.
Criminal prosecution for offences under the current regulation
is difficult. Currently, to prosecute a matter ACMA must refer a
brief to the DPP which may not agree that particular conduct
warrants prosecution. In addition, the prosecution process can be
lengthy and resource-intensive. Furthermore, breaches of the BSA
must be proved to the criminal standard of proof, that is, beyond
reasonable doubt.
It is evident that criminal sanctions may be inappropriate for
minor infringements. It is probable that the existence of criminal
sanctions, which essentially amount to a threat rather than a
reality, do not actually constitute an effective deterrent. It is
likely that graduated non criminal sanctions will be more effective
as they will be more easily and quickly applied.
The introduction of a more flexible regime will also be more
likely to:
remedy the wrong to audiences affected by a code
breach, and they would enhance the credibility of the regulatory
scheme because audiences would be more likely to see that codes
breaches are being detected and sanctioned.(30)
A more flexible regulatory regime would allow more options to
deal with the following types of conduct cited in the Ramsay
report:
Case studies breaches of Codes of
Practice
Commercial television
Unfair identification of individuals
in news and current affairs programs
The complaint concerned a segment on chroming
(inhaling aerosol spray from a plastic bag) on A Current Affair
program broadcast by GTV9 Melbourne. The segment included
interviews with two clearly identifiable teenage chromers . In
respect of the two young people interviewed, the ABA found that the
segment breached clause 4.3.7 of the code in that it unfairly
identified them when commenting on the behaviour of a group. The
ABA took the view that the two young people were unfairly
identified as: they were minors; they were substance affected at
the time they were interviewed; and prior to the segment going to
air they had requested that their identities not be disclosed
during the program.
Failure to represent viewpoints
fairly, unfairly identifying a single person when commenting on the
behaviour of a group of persons
The complaint concerned a segment on A Current
Affair concerning the medical treatment provided by a plastic
surgeon to a former patient. Particular issue was taken with the
licensee s conduct in broadcasting a story damaging to the
professional reputation of a medical practitioner who had been
cleared by the court of negligence and breach of contract some six
weeks before the broadcast.
The ABA found that the report did not do justice
to the doctor s viewpoint, particularly as it related to the matter
of negligence. By presenting only a very small portion of the
doctor s evidence, his views were not presented in their entirety.
The ABA also upheld the complaint that the doctor was unfairly
singled out as an individual. The report juxtaposed generalised
comment about the behaviour of the cosmetic surgery industry with a
focus on a single doctor who was identified by name. The report
conveyed an unfair impression that the doctor was not a good
surgeon, when the judgment of the court indicated that the doctor
had a reputation for being a highly skilled surgeon.
Commercial radio
Failure to meet contemporary standards
of decency
The complaint concerned a contest called Don t
Tell Us Your Name, Tell Us Your Secret broadcast by Radio 2WFM. The
complainant was concerned that the prize was awarded to a caller
who disclosed the secret that he had arranged for the alleged
boyfriend of his wife to be beaten up . The ABA determined that the
broadcast breached clause 1.5(a) of the code as elements of it did
not meet community standards of decency having regard to the likely
characteristics of the audience. A caller was rewarded for
publicising an account of his involvement in criminal conduct, an
assault. Further, the presenters failed to indicate to the audience
that the behaviour described by the caller was unlawful or in any
way unacceptable.(31)
While the Government s overall media package has received
significant media coverage and elicited comment from all political
parties, this Bill has not specifically been commented upon.
However, there have been comments in relation to controversy
about the Big Brother program screened on Ten Network. In July 2006
two male housemates were removed from the Big Brother house on the
Gold Coast following a sexually offensive incident involving a
fellow housemate. Footage was streamed live over the Internet on
the Big Brother website, but was not broadcast on Channel 10.
ACMA found that because Channel 10 did not broadcast the footage
of the incident on TV the television codes did not apply. According
to Internet regulations the production company which administers
the Big Brother website had also not breached any rules. Because
the Internet footage was streamed live as a webcast and not
actually stored, it was not technically considered
broadcasting.
In commenting on the incident, Family First Senator Steve
Fielding considered that ACMA should be empowered to respond to
these particular types of programs and fine broadcasters
heavily.(32) Labor communications spokesperson, Senator
Stephen Conroy, said the Government was warned two years ago by the
regulator that the BSA had inadequate remedies. Senator Conroy said
that any changes to the law will be just window-dressing unless
ACMA is given the power to uphold community standards of decency
.(33)
The Explanatory Memorandum notes that there will be no
significant financial impact for the Commonwealth arising from this
Bill.
Item 48 inserts into the BSA a new Part
14B which deals with civil penalties, new Part
14C which deals with injunctions, new Part
14D which deals with enforceable undertakings and
new Part 14E which deals with infringement
notices.
Item 52 inserts a new Part 5.8
into the Radiocommunications Act 1992 (Radcom Act) that
provides for enforceable undertakings.
These new enforcement powers are dealt with in turn.
The procedure by which a penalty is imposed determines whether
the penalty is a criminal or a civil penalty.(34) The
current criminal penalties in the BSA require ACMA to:
- refer prosecutions to the Commonwealth Director of Public
Prosecutions (DPP),
- establish the breach beyond reasonable doubt (the criminal
standard of proof), and
- demonstrate that there was the requisite intention to
breach.(35)
In contrast, the proposed new civil penalties will enable ACMA
itself to commence proceedings in the Federal Court and establish
the breach on the balance of probabilities (the civil standard of
proof). The civil penalties in the Bill will be additional or
alternative enforcement options to the criminal penalties which are
already in the legislation.
Proposed Division 2 of Part 14B of the BSA
outlines civil penalty orders. New section 205EA
explains that Pecuniary penalties are payable for contraventions of
civil penalty provisions.
The Bill creates a number of new civil penalty provisions.
Item 20 inserts new subsections
121FG(3) and (4) in the BSA which make it a civil penalty
provision for a person to provide an international broadcasting
service if the person does not have a licence to provide that
service.
Item 21 inserts new sections 121FH,
121FHA and 121FHB in the BSA. ACMA will be empowered to
give remedial directions in relation to the unlicensed provision of
an international broadcasting service (new section
121FH). New subsection 121FHB(2) makes it
a civil penalty provision for a person to comply with such remedial
directions. New subsection
121FHA(1) provides that failure to comply with such
remedial directions is an offence with a penalty of 20,000 penalty
units.(36)
Item 27 inserts a new Division
1A in Part 10 of the BSA that outlines
civil penalty provisions relating to unlicensed services.
It is a civil penalty provision for a person to provide:
- a commercial television broadcasting service
- a subscription television broadcasting service
- a commercial radio broadcasting service
- a community television broadcasting service with the use of the
broadcasting services bands, or
- a community radio broadcasting service with the use of the
broadcasting services bands
if the person does not have a licence to provide that
service.
Item 28 inserts new sections 137, 138
and 138A in the BSA. ACMA will be empowered to give
remedial directions in relation to the unlicensed provision of the
above mentioned broadcasting services (new section
137). New subsections 138A(1) and (2)
make it a civil penalty provision for a person to comply with such
remedial directions. New section
138 provides that failure to comply with such a notice is
an offence with a penalty of:
- 20,000 penalty units for the provision of an unlicensed
commercial television broadcasting service
- 2,000 penalty units for the provision of an unlicensed
subscription television broadcasting service or unlicensed
commercial radio broadcasting service, and
- 50 penalty units for the provision of an unlicensed community
television broadcasting service or an unlicensed community radio
broadcasting service.
Item 22 inserts new sections 121FJA,
121FJB, 121FJC and 121FJD in the BSA. New
subsections 121FJA(1) and (2) make it a civil penalty
provision for an international broadcasting licensee to breach a
licence condition. ACMA will be empowered to give remedial
directions in relation to the relevant licence condition
(new section 121FJB). New subsections
121FJD(1) and (2) make it a civil penalty provision for a
person to comply with such remedial directions. New section
121FJC provides that failure to comply with such a notice
is an offence with a penalty of 2,000 penalty units.
Item 33 inserts a new section
140A in the BSA which outlines civil penalty provisions
relating to breach of licence conditions by:
- commercial television broadcasting licensees
- subscription television broadcasting licensees
- commercial radio broadcasting licensees
- community broadcasting licensees, and
- temporary community broadcasting licensees.
This section also outlines civil penalty provisions relating to
the breach of conditions of class licences by persons
providing:
- subscription radio broadcasting services
- subscription narrowcasting services, or
- open narrowcasting services.
Section 139 of the BSA makes it a criminal offence to breach
these conditions of licences and class licences.(37)
Accordingly:
[w]here a licensee breaches one or more of the
specified licence conditions, the licensee could be prosecuted for
an offence under section 139, or the ACMA could commence an action
in the Federal Court seeking the imposition of a civil penalty for
a breach of new section 140A.(38)
Item 34 repeals sections 141 and 142 and
inserts new sections 141, 142 and 142A. ACMA will
be empowered to give remedial directions in relation to licence
conditions relating to commercial, community or subscription
services, class licences or codes of practice as the case may be
(new section 141). New subsections 142A(1)
and (2) make it a civil penalty provision for a person to
comply with such remedial directions. New
section 142 provides that failure to comply with
such a notice is an offence with a penalty. The number of penalty
units varies, from 50 to 20,000 penalty units, depending on the
class of licence or type of broadcasting licence.
A failure to comply with one of ACMA s new remedial directions
powers (referred to above; directed towards ensuring that
unlicensed services are not provided or licence conditions or
certain codes of practice are not breached) would incur either a
civil or criminal penalty.(39)
New subsection 205G(1) provides that only ACMA
may apply for a civil penalty order.(40) New
subsections 205F(1) and (2) provide that if the Federal
Court is satisfied that a person has contravened a civil penalty
provision it may order the person to pay the Commonwealth a
pecuniary penalty (known as a civil penalty order). New
subsection 205F(4) provides that that the maximum
pecuniary penalty for contravention of a civil penalty provision is
the maximum penalty that could have been imposed for contravention
of the equivalent criminal offence.(41) New
subsection 205F(8) outlines civil enforcement of the
penalty.
New sections 205L, 205M and 205N outline the
relationship between civil proceedings and criminal proceedings for
conduct that could constitute both a civil penalty provision and an
offence. In sum, proceedings for a civil penalty order will be
stayed if:
- criminal proceedings are started but can be resumed if the
person is not convicted (new section
205M), or
- criminal proceedings can be started regardless of whether a
civil penalty order has been made against the person (new
section 205N) but if a person has been convicted of an
offence then the Federal Court must not make a civil penalty order
against the person (new section 205L).
New section 205PAA provides for a defence of
mistake of fact in relation to the contravention of a civil penalty
provision other than in new subsections 202(1A) and
(2AA) (which relate to requirements to give evidence or to
produce documents at a hearing). This provision is based on the
mistake of fact provision in clause 9.2 of the Criminal
Code.(42)
Any prior civil penalty orders made against a company or
relevant person will be considered in ACMA s assessment of whether
they are suitable to be allocated or to hold a broadcasting licence
(changes made by items 9 10, 12 19 of the
Bill).
New Part 14C of the BSA stipulates amendments
relating to injunctions. New section
205PA provides that The Federal Court may grant
injunctions in relation to contraventions of subsection 121FG(3) or
section 136A, 136B, 136C, 136D or 136E (which deal with the
provision of unlicensed services). The Explanatory Memorandum
explains that:
Injunctions to prevent unlicensed broadcasts are
principally aimed at licensees outside commercial broadcasting
categories, such as narrowcasters (which are licensed to provide
only niche services) that provide commercial broadcasting
services.(43)
New section 205Q provides that ACMA may apply
to the Federal Court for an injunction if a person has engaged, is
engaging or is proposing to engage, in conduct that constitutes
unlicensed broadcasting. The Federal Court may grant an injunction
restraining the person from engaging in conduct and, if the court
considers it desirable, requiring the person to do something.
New subsection 205R(1) provides that the Federal
Court may grant an interim injunction before considering the
application for an injunction. The granting of an interim
injunction is not to be conditional upon the applicant (presumably
ACMA) giving an undertaking as to damages (new subsection
205R(2)).
New section 205U confirms that the powers
conferred on the Federal Court under Part 14C are additional powers
of the court.
New Part 14D of the BSA provides for
enforceable undertakings. New section 205V
explains that A person may give ACMA an enforceable undertaking
about compliance with this Act or a registered code of
practice.
ACMA may accept written undertakings that a person will:
- take specified action in order to comply with the BSA
(new paragraph 205W(1)(a)) or a registered code of
practice (new paragraph 205W(1)(d))
- refrain from taking specified action in order to comply with
the BSA (new paragraph 205W(1)(b)) or a registered
code of practice (new paragraph 205W(1)(e)),
and
- take specified action directed towards ensuring that the person
does not contravene the BSA (new paragraph
205W(1)(c)) or a registered code of practice (new
paragraph 205(1)(f)).
An undertaking may only be withdrawn or varied with ACMA s
consent (new subsection 205W(3)). ACMA may cancel
the undertaking (new subsection 205W(4)).
New section 205X provides for the enforcement
of undertakings. ACMA may apply to the Federal Court for an order
(new subsection 205X(1)). The Federal Court may
make any or all of the orders specified in new subsection
205X(2) if it is satisfied that a person has breached an
undertaking.
Item 52 of the Bill inserts a new Part
5.8 into the Radcom Act that provides that a person may
give ACMA an enforceable undertaking about compliance with the
Radcom Act. The sections on acceptance of undertakings (new
section 298C of the Radcom Act) and enforcement of
undertakings (new section 298D of the Radcom Act)
are drafted in similar terms to new sections 205W
and 205X of the BSA as outlined above.
New Part 14E of the BSA provides a regime of
infringement notices for contraventions of designated notice
provisions (new section 205XAA). The Bill creates
a number of new designated notice provisions.
Item 11 of the Bill inserts new section
65B which makes sections 62, 63, 64 and 65 of the BSA
designated notice provisions. Sections 62, 63, 64 and 65 are the
notification provisions in Part 5 (control of commercial
broadcasting licences and datacasting transmitter licences) which
require a number of changes, for example, in relation to the
control and directorships of broadcasters, to be communicated to
ACMA. Note that section 65 provides that a person in control of a
commercial television broadcasting licence or a commercial radio
broadcasting licence must notify ACMA of newspaper interests.
Items 30 and 32 of the Bill insert new
subsections 139(1A), (1B) and (1C) and new
subsections 139(3A), (3B) and (3C). These new provisions
provide that if a:
- commercial television broadcasting licensee (new
subsection 139(1A)), or
- commercial radio broadcasting licensee (new subsection
139(3A))
breaches the standard licence condition to keep accounts
(section 205B), they commit an offence. New subsections
139(1B) and (3B) make these strict liability offences.
New subsections 139(1C) and (3C) make new
subsections 139(1A) and (3A) designated infringement notice
provisions.
If an authorised infringement notice officer has reasonable
grounds to believe that a person has contravened a designated
infringement notice provision they may give them a written notice
warning that they may be given an infringement notice
(new section 205XA) or they may
give the person an infringement notice (new section
205Y). However, new subsection 205Y(4)
provides that an infringement notice cannot be given unless the
person has previously been given a formal warning under new
section 205XA relating to that contravention or a similar
contravention. An authorised infringement notice officer in
exercising power under Part 14E is to have regard to any relevant
guidelines that are in force relating to ACMA s enforcement powers
(new subsection 215(2)).
New section 205Z outlines the matters that are
to be included in an infringement notice, including a statement to
the effect that if the penalty specified is paid to ACMA (on behalf
of the Commonwealth) within the requisite period that proceedings
will not be brought in relation to the alleged contravention
(new paragraph 205Z(d)). New subsection
205ZC(2) provides that any liability for the alleged
contravention will be discharged if the penalty is paid in
accordance with the infringement notice. New section
205ZA outlines the amount of the penalty (a pecuniary
penalty equivalent to 60 penalty units for a commercial or
subscription television broadcasting licensee and in any other case
a pecuniary penalty equivalent to 10 penalty units). New
section 205ZB provides that an infringement notice may be
withdrawn within 28 days and if the penalty had been paid that the
Commonwealth is liable to refund the penalty.
New section 205ZD outlines the effect of
new Part 14E on criminal proceedings. Proceedings
can be brought against a person for an alleged contravention of a
designated infringement notice provision if an infringement notice
is not given to the person, or where it is given but is later
withdrawn, or where the person does not comply with the
infringement notice (new paragraph 205ZD(b)).
Item 50 inserts a new section
215 which provides that ACMA is to formulate guidelines
relating to the ACMA s powers in relation to breaches of licensing
provisions, information gathering, civil penalties, injunctions,
enforceable undertakings, giving infringement notices, and
referring matters to the DPP.
The Explanatory Memorandum states:
The guidelines are not intended to be prescriptive
or limiting. The ACMA is to retain the discretion to seek the
sanctions it considers appropriate in light of the particular
circumstances of the case.(44)
New subsection 215(4) provides that the
guidelines must be in the form of a legislative instrument and the
Note to the subsection refers the reader to Part 3 of the
Legislative Instruments Act 2003 (LIA). Part 3 of LIA
concerns consultation before making legislative instruments.
Section 17 of the LIA outlines the circumstances in which
rule-makers should consult before making legislative instruments.
Possible forms of consultation include:
notification, either directly or by advertisement,
of bodies that, or of organisations representative of persons who,
are likely to be affected by the proposed instrument. Such
notification could invite submissions to be made by a specified
date or might invite participation in public hearings to be held
concerning the proposed instrument.(45)
New subsections 215(5) and (6) require ACMA to
ensure that guidelines in regard to the powers conferred on the
ACMA by:
- Division 4 of Part 8B (remedies relating to international
broadcasting licences)
- Part 10 (breach of licensing provisions)
- new Part 14B (civil
penalties)
- new Part 14D (enforceable
undertakings), and
- the powers conferred on an authorised infringement notice
officer by new Part 14E
are in force at all times after the commencement of new
section 215.
New section 215 is to commence on a day to be
fixed by Proclamation or no later than the day after three months
from the date of Royal Assent. Accordingly, finalisation of the
guidelines including consultation in relation to the enforcement
powers specified in new subsections 215(5) and (6) must occur
within a period just over three months. Paragraph 18(2)(b) of the
LIA provides that a rule-maker may be satisfied that consultation
is unnecessary or inappropriate if an instrument is required as a
matter of urgency. Further, section 19 of that Act provides that
the fact that consultation does not occur does not affect the
validity or enforceability of a legislative instrument.
If implemented the amendment will provide ACMA with greater
flexibility to respond to breaches of the BSA and, to a lesser
extent, the Radcom Act. In particular, the amendment will establish
a civil penalty regime for breaches of the BSA with the key
features being that:
- ACMA will assume the prosecutorial discretion to prosecute
breaches attracting civil penalties itself in the Federal Court,
and
- the standard of proof for these prosecutions is the civil
standard of proof, that is, on the balance of probabilities.
Little in this Bill is particularly contentious.
Endnotes
- Productivity Commission, Broadcasting Inquiry Report No
11, Report,
AusInfo, Canberra, 3 March, 2000.
- Department of Communications, Information Technology and the
Arts, Proposal for new institutional arrangements for the
Australian Communications Authority and the Australian Broadcasting
Authority, Canberra, August 2003.
- Only in the case of commercial television, and only then in the
areas of Australian content and children s television, has the BSA
required ACMA to determine mandatory program standards.
- Australian Broadcastig Authority, Commercial radio inquiry
(commonly referred to as "Cash for comment"),
Report, June 2001.
- The first licence condition provided that the radio station was
to maintain a regime of on-air and off-air disclosure of commercial
agreements between presenters and their sponsors. It also called
for the station to conduct a compliance program which required
presenters and staff to undertake training concerning the
obligations imposed BSA, the Commercial Radio Codes of Practice and
licence conditions. The second licence condition requires that
advertisements be distinguished from other program matter.
Commercial radio inquiry, ibid.
- Australian Broadcasting Authority, ABA to Refer
2UE Breaches of Disclosure Standard to DPP, press
release, NR90/2003, 4 December 2003.
- ibid.
- The finding was that 2UE had beached s 7(1) of the
Broadcasting Services (Commercial Radio Current Affairs
Disclosure) Standard 2000.
- Australian Broadcasting Authority, ABA to Refer
2UE Breaches of Disclosure Standard to DPP, op. cit.
- ibid.
- This additional licence condition will require 2UE to engage an
approved independent third party to monitor and report on the John
Laws program, for limited periods. ACMA considered this would
provide an ongoing incentive to ensure compliance with the
disclosure requirements.
- Australian Broadcasting Authority, 2UE prosecution not to
proceed, press
release, NR66/2004, 29 June 2004.
- ibid.
- Australian Broadcasting Authority, Commercial Radio
Inquiry,
Final Report, Sydney,
August 2000.
- ibid.. The discussion paper outlined a number of legislative
options proposed by the ABA to strengthen its enforcement powers
and sought comments on these proposals. The proposals included the:
- introduction of sanctions against presenters for
non-disclosure of arrangements under which they or any other person
are entitled to receive a benefit in return for any on-air
conduct
- granting the ABA the power to require a licensee to
broadcast an on-air statement of ABA findings with regard to any
statutory, licence or code breaches by that licensee
- granting the ABA wider powers to seek injunctions from the
court, and
- granting the ABA the power to direct advertising free periods
for a specified period of time.
- I. Ramsay, Reform of the broadcasting
regulator s enforcement powers,
Report, Sydney, Australian Communication and Media Authority,
November 2005.
- Lyn Maddock, Foreword to report of I Ramsay, of the
broadcasting regulator s enforcement powers,
Report, Sydney, Australian Communication and Media Authority,
November 2005.
- Ramsay, op. cit., p. 5.
- The fee is due and payable at the rate of 20 per cent per
annum, calculated on the amount unpaid.
- Ramsay, op. cit.
- Section 137 BSA provides that if ACMA is satisfied that a
person is providing a commercial television broadcasting service, a
commercial radio broadcasting service, a subscription television
broadcasting service, or a community broadcasting service, without
a licence to provide that service, ACMA may issue a written notice
to the person directing them to cease providing that service.
- The sections to which these recommendations relate are
currently subject to criminal penalties. In the case of the
recommendation relating to a breach of additional licence
conditions the sections to which this recommendation relates are
not currently subject to criminal penalties Professor Ramsay
recommend that this should not change.
- The fee is due and payable at the rate of 20 per cent per
annum, calculated on the amount unpaid.
- The licence conditions are those conditions which, if breached,
are currently subject to criminal penalties under section 139
BSA.
- Australian Broadcasting Corporation, Proposed Reforms to
the Broadcasting Regulatory Powers of the Australian Communications
and Media Authority,
Submission to the Department of Communications, Information and the
Arts, December 2005
- Australian Film Commission, Proposed Reforms to the
Broadcasting Regulatory Powers of the Australian Communications and
Media Authority,
Submission to the Department of Communications, Information and the
Arts, December 2005
- Free TV Australia, Proposed Reforms to the Broadcasting
Regulatory Powers of the Australian Communications and Media
Authority,
Submission to the Department of Communications, Information and the
Arts, December 2005
- Commercial Radio Association, Proposed Reforms to the
Broadcasting Regulatory Powers of the Australian Communications and
Media Authority,
Submission to Department of Communications, Information and the
Arts, December 2005
- See summary of submissions in previous section.
- Ramsay, op. cit., p. 38.
- Ramsay, op. cit., pp. 36 39.
- A. Moses and D.
Humphries, House incident triggers review of regulation ,
Sydney Morning Herald, 6 July 2006.
- ibid.
- Australian Law Reform Commission, Principled Regulation:
Civil and Administrative Penalties in Australian Federal
Regulation, Report,
No. 95, Sydney, 2003, par 2.2.
- Explanatory Memorandum to the Communications Legislation
Amendment (Enforcement Powers) Bill 2006, p. 1.
- A penalty unit equates to $110 according to section 4AA
Crimes Act 1914.
- Explanatory Memorandum, op. cit., p. 36.
- ibid.
- Explanatory Memorandum, op. cit., p. 1.
- Note new subsection 205G(2) provides that subsection 205G(1)
does not exclude the operation of the Director of Public
Prosecutions Act 1983 (Commonwealth).
- Refer to the table detailing the corresponding existing
criminal offences and new civil penalty provisions and the relevant
maximum penalties in the Explanatory Memorandum, pp. 41 42.
- Explanatory Memorandum, op. cit., p.
43.
- ibid., p. 2.
- ibid., pp. 50 51.
- Subsection 17(3) of the Legislative Instruments Act
2003 (Cth).
Rhonda Jolly
Social Policy Section
Justine Clarke
Law and Bills Digest Section
11 October 2006
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
© Commonwealth of Australia 2006
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