Bills Digest No. 58 1999-2000 Broadcasting Services Amendment Bill (No. 1) 1999

Numerical Index | Alphabetical Index

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.


Passage History
Main Provisions
Concluding Comments
Contact Officer & Copyright Details

Passage History

Broadcasting Services Amendment Bill (No. 1) 1999

Date Introduced: 28 June 1999

House: House of Representatives

Portfolio: Communications, Information Technology and the Arts

Commencement: On Assent, except for Schedules 2 and 3 which commence three months after the Royal Assent


To amend the Broadcasting Services Act 1992 (the BSA) and other legislation to provide for the introduction of:

  • an 'anti-hoarding' regime that will prevent free-to-air (FTA) television broadcasters from obtaining, but not using, the rights to show certain sporting events
  • measures to restrict pay television (pay TV) operators in regional areas from showing prime time metropolitan commercial programming
  • a new regime for the re-transmission of FTA broadcasting services
  • an increase in the time allowed for sponsorship announcements by community broadcasters.


The first three of the above measures were introduced in the Broadcasting Services Amendment Bill 1998 that lapsed when the 38th Parliament was prorogued.(1) That Bill was the subject of a report by the Senate Environment, Communications, Information Technology and the Arts Legislation Committee (SECITALC) which canvassed a number of issues while ultimately recommending that the Bill be passed without amendment.(2) The current Bill replicates the anti-hoarding provisions of the earlier Bill, but makes a number of changes to the provisions for regional pay TV programming and re-transmission.


Since the introduction of pay TV it has been a policy objective of all major parties that major sporting and cultural events remain available to the Australian public on free-to-air television. Section 115 of the BSA enables the Minister to list events that are in this category (the 'anti-siphoning list'). As a condition of their licences, pay TV operators are prohibited from acquiring broadcasting rights to these events unless the national or commercial FTA broadcasters have also acquired the rights. However, there are no provisions in the Act to ensure that the FTA broadcasters actually show the events for which they have acquired the rights. The anti-hoarding provisions in the Bill are an attempt to deal with this situation by establishing a 'must offer' regime for FTA broadcasters who have acquired the rights to certain events but are unwilling or unable to show them 'live' to the general public.

The provisions will enable the Minister for Communications, Information Technology and the Arts to make a disallowable instrument listing events to which the regime will apply (the 'anti-hoarding list'). If the 'live' broadcasting rights to a listed event have been acquired by a commercial television broadcaster or their program suppliers, then they must either broadcast the event 'live' or offer the event to the national broadcasters (the ABC and SBS) for the amount of $1. Similarly, the national broadcasters must offer the listed events to each other if they do not intend to use the rights.

Compliance with the anti-hoarding rules is a condition of a commercial television licence, while program suppliers who intentionally or recklessly breach the rules will be subject to a civil penalty of 2000 penalty units, currently $220,000.

The commercial television broadcasters have questioned the need for the rules, arguing that hoarding does not take place and that failure to broadcast an event 'live' and in full has been erroneously equated with hoarding. Pay TV operators have criticised the proposed rules as ineffective, as there will be no requirement for the national broadcasters to show those events that have been passed on to them for a nominal fee. The ABC has argued that the 'offer time' should be at least 30 days before the event is to be shown or there may be difficulties with programming changes and informing viewers. Under the amendments, the offer time for each event is determined by the Minister when the event is designated as part of the anti-hoarding list.

Regional Pay TV Programming

Section 212 of the BSA permits the re-transmission of programs within a licence area by non-licensees. This provision was intended to facilitate 'self-help' groups to improve their reception of FTA programs in areas where the signals were poor or non-existent. The provision has also enabled pay TV operators to re-transmit the programs of commercial and national FTA channels for the convenience of their subscribers. In places where metropolitan and regional licence areas overlap, pay TV operators can re-transmit the metropolitan programming. While regional and metropolitan licensees may broadcast the same network programming, the regional licensees also televise local news, sport and advertising. The replacement of the regional broadcast by the metropolitan broadcast could thus have detrimental effects on the advertising revenue for the regional broadcaster (by reducing their potential audience) and could threaten the integrity of the licence area concept.

The amendments will prevent a regional pay TV operator from providing a television service if three or more consecutive program items are identical to any three or more program items broadcast by a metropolitan FTA broadcaster in prime viewing hours unless they have the permission of the Australian Broadcasting Authority (ABA). This approach is somewhat more specific than that adopted by the 1998 Bill, which prohibited re-transmission when the majority of programs broadcast were the same as those provided by a metropolitan licensee. In their submission to the SECITALC, pay TV operators stated that they thought the provisions were flawed in that they would unintentionally catch certain services.

Re-transmission of Programs

In 1996 the Full Federal Court held that simultaneous and unaltered cable re-transmissions of FTA television services are permitted under the current provisions of the BSA and the Copyright Act 1968.(3) In that case, Networks Seven, Nine and Ten unsuccessfully sought to restrain Foxtel from re-transmitting their programs as part of Foxtel's 20-channel cable television service. The commercial networks argued that section 212 of the BSA must be given a strict interpretation and therefore did not apply to Foxtel's re-transmission of their signals. The Federal Court rejected this argument. It followed from the Court's interpretation of the section that the Networks also failed in their copyright and trademark claims. In relation to copyright, the Court held that section 199(4) of the Copyright Act, which allows a cable subscription service to transmit a broadcast signal, applied to Foxtel. It also held that there was no infringement of trademark because the broadcast signal as re-transmitted by Foxtel would continue to denote a connection with the commercial networks and their programs.

The effect of the judgement is that almost any person can re-transmit the programs of a FTA broadcaster. As a result, pay TV licensees continue to re-transmit FTA television without compensating copyright owners or seeking the permission of FTA broadcasters.

The Copyright Convergence Group (CCG) in its 1994 report(4) recommended that pay TV licensees should pay for using intellectual property that belongs to others. In this regard it should be noted that re-transmission involves two distinct copyright issues:

  • that relating to the broadcast signal copyright, and
  • that relating to the underlying copyright holders whose material is transmitted and re-transmitted.

The re-transmission provisions of this Bill will:

  • enable 'self-help' arrangements to continue without the need to gain permission from free-to-air broadcasters to re-transmit their signals
  • require pay TV licensees to compensate underlying copyright holders for the use of their intellectual property, and
  • require pay TV licensees to seek permission from free-to-air broadcasters to
    re-transmit their signals.

In their submissions to the SECITALC, the commercial and national FTA broadcasters supported the legislation. They argued that their property rights should be respected and remunerated and that they should have control over their signals to ensure quality control in transmissions. The pay TV industry opposed the legislation, arguing that
re-transmission benefits FTA broadcasters and their advertisers by increasing their reach and ensures a better service for consumers. The committee also received many submissions from pay TV consumers who complained that, if the legislation was passed, they might lose access to FTA service via cable, resulting in a deterioration of signal quality. The commercial FTA broadcasters emphasised that it was not their intention to prevent re-transmission, but to control the conditions under which it occurred.

Main Provisions

Schedule 1--Anti-hoarding amendments

Proposed new section 146C enables the Minister to declare a certain event or series of events to be 'designated'. In making a declaration the Minister must also determine the 'offer time' (proposed subsection 146C(4)). That is, the time in which a FTA broadcaster must make unused material available to the national broadcasters. Proposed subsection 146C(6) provides that declarations made under section 146C are disallowable instruments.

The anti-hoarding rule applies to program suppliers (proposed section 146F). Proposed new section 146D sets out the criteria for determining whether a person is a program supplier of a commercial broadcasting licensee. A person will be a program supplier for the purposes of the Act if the person:

  • has an agreement to supply a licensee with programs and the person supplies or may be expected to supply the licensee with at least two-thirds of televised sporting programs that are or will be televised by the licensee or all other prescribed programs during the period of agreement (proposed subsection 146D(2)).
  • is a related body corporate of the licensee and supplies or proposes to supply sporting programs or other prescribed programs to the licensee (proposed subclause 146D(3)).
  • is declared by the ABA to be a program supplier. Item 2 amends section 204 to enable a person to seek review by the Administrative Appeals Tribunal (AAT) of an ABA declaration under this section.

Proposed new section 146E sets out the anti-hoarding rule as it applies to commercial television broadcasters. A licensee will breach the rule if:

  • the licensee has, in the licence area, the right to televise live a designated event or a designated series of events, and
  • the licensee acquired the broadcast rights after the event was designated, and
  • the licensee failed to televise live the event at all or in part, and
  • neither the licensee nor the licensee's program supplier offered to transfer the rights to the event to the ABC and SBS within the offer time specified by the Minister under section 146C.

Proposed subsection 146E(2) provides that a licensee will be taken to have televised live the whole of an event if all but an insubstantial proportion is covered. The subsection is designed to allow the broadcast of commercial breaks and news breaks for example.

Contravention of the anti-hoarding rule will constitute a breach of the broadcaster's licence condition. Item 3 amends the licence conditions in Schedule 2 of the BSA. Sanctions for breach of these conditions include suspension or cancellation of the commercial broadcaster's licence.

Proposed new section 146F provides that a program supplier must not intentionally or recklessly contravene the anti-hoarding rule. This provision is similar to that which applies to commercial broadcasters. Program suppliers will however be subject to a fine of
2000 penalty units (currently $220,000) for intentionally or recklessly contravening the rule.

Proposed section 146H provides that offers must be in writing to the Managing Directors of the ABC and SBS at 'about the same time'. The offer must be open until the start of the event or series. Proposed subsection 146H(6) provides that the offer must require the ABC or SBS to promise to pay $1 for the transfer of broadcast rights.

Proposed section 146J precludes licensees and their program suppliers from entering into contracts which allow them to acquire or entitle them to acquire the rights to televise a designated event or series unless the contract allows them to offer the rights to the national broadcasters. Contracts entered into in breach of the section will be void.

Proposed section 146K is designed to protect broadcasters and their suppliers from breaching the anti-hoarding provision in relation to simultaneous events in a designated series. The Explanatory Memorandum gives the example of Wimbledon Tennis Championships.(5) If two or more events in the same series overlap in time and the licensee televises one of those events live, the licensee is taken to have televised live the remainder of those simultaneous events.

The anti-hoarding rule also applies to the ABC and SBS (proposed section 146L). Both are captured by the general provisions of the anti-hoarding rule but are only compelled to offer live rights to each other.

It is important to note that the effect of proposed subsection 146L(6) is that the national broadcasters are not compelled to show a program transferred under the anti-hoarding provisions from a commercial broadcaster. Proposed sections 146M, 146N, 146P and 146Q apply to the national broadcasters and mirror the proposed framework applying to commercial broadcasting licensees and their program suppliers in relation to 'offer' requirements, contracts authorising a transfer of rights and the coverage of simultaneous events in a series.

Schedule 2--Pay TV programming in regional areas

Item 1 of Schedule 2 inserts a new Part 8A, which restricts the content of subscription television services (pay TV) in regional areas. These provisions have been substantially amended since the Broadcasting Services Amendment Bill 1998 (the 1998 Bill) lapsed.

Proposed section 121E is the key operative provision of the new part. The permission of the ABA is required if a pay TV operator, or related body corporate, transmits 3 or more consecutive program items that are identical to any 3 or more programs transmitted by a metropolitan commercial television broadcasting licensee during prime viewing hours.

The Explanatory Memorandum notes that the consecutive requirement only applies to the pay TV broadcaster or its related body corporate. It is not possible for a broadcaster to avoid the requirements of the section by changing the order of programs transmitted by the metropolitan licensee.(6)

As noted above, the new Part 8A is more specific than the 1998 Bill. In that Bill, pay TV broadcasters required the permission of the ABA to broadcast in a regional area if the majority of the material broadcast was the same as televised by a metropolitan commercial television licensee. In addition, the role of the Minister in designating programs, which may not be transmitted by Pay TV in regional areas, has been removed from the Bill.

Item 2 adds two items to the table in section 204 of the BSA. Section 204 lists particular situations where a listed person may apply to the AAT for review of an ABA decision. The two new items relate to permission either refused or granted under proposed section 121E (above). Persons who may apply for review are:

  • pay TV broadcasting licensees or a related body corporate, and
  • commercial broadcasting licensees (if any part of their licence area overlaps with the regional area).

Item 3 provides that contravention, by pay TV licensees, of the programming restrictions in regional areas will constitute a breach of a licence condition.

Item 4 brings persons providing an open narrowcasting television service(7) or a pay TV narrowcasting service(8) within the above provisions.

Schedule 3--Re-transmission of programs

Schedule 3 has been substantially amended since the 1998 Bill.

Item 1 inserts a definition of re-transmission into section 6 of the Act. A re-transmission of programs occurs where the content of programs is unaltered (even if the technique of re-transmission is different from the method of original transmission) and the re-transmission is simultaneous with the original transmission or if the re-transmission is into a different time zone - the retransimission is delayed until no later than the equivalent local time. The Explanatory Memorandum states that the definition is consistent with the meaning given to the term by the Full Federal Court in the FOXTEL case.(9) The insertion of the definition will make it clear that if a program is altered in any way it will not amount to a re-transmission.

Items 3 and 4 amend the definitions of 'subscription narrowcasting services' and 'open narrowcasting services' to exclude re-transmissions of national, commercial and community broadcasting services. This is to ensure that such re-transmissions are dealt with by the proposed new regime inserted by Item 6.

Item 6 inserts a new Part 14B into the BSA to replace the re-transmission regime in section 212 of the Act. The Part specifies certain re-transmissions of radio and television programs that are exempt from the Act and includes re-transmissions of commercial and community broadcasting services:

  • by a self-help provider for the sole or principal purpose of obtaining or improving reception. Self-help providers are immune from proceedings under the Copyright Act (proposed subsection 205N(3).
  • by a person other than a self-help provider with the agreement of the commercial/community licensee
  • by any person if the re-transmission is within a declared remote area. The ABA is empowered by proposed section 205H to make determinations concerning remote areas. These determinations are disallowable instruments.

In contrast to the 1998 Bill, re-transmissions within and outside the licence area are now subject to exemptions. The list of 'in-licence-area' exemptions is contained in proposed section 205N and the 'out-of-licence-area' exemptions are listed in proposed section 205P.

A parallel list of exemptions from the Act applies to the re-transmission of programs transmitted by the ABC or SBS (proposed section 205V).

Proposed section 205J defines self-help providers to include amongst others:

  • a non-profit body or a local government body which provides the re-transmissions for the sole or principal purpose of obtaining or improving reception in a community
  • companies operating a mine or oil or gas installation in an isolated location which provide re-transmissions for the sole or principal purpose of obtaining or improving reception in a community
  • a person who provides the re-transmission within a building or structure for the sole or principal purpose of obtaining or improving reception for persons in the building or structure.

The Minister is empowered under proposed section 205K to deal with anomalies by declaring certain persons to be self-help providers and thus exempt from proposed Part 14B and other persons to be excluded providers. The Explanatory Memorandum gives the example of the exclusion power being applied to a local government body which undertook to provide the service on behalf of a pay TV operator so that that operator could avoid the operation of the rules.(10) Determinations made under the section are disallowable instruments.

Where a re-transmission does not fall within one of the exemptions outlined above(11), the Bill provides for remedies. These provisions are intended to capture pay TV services which currently re-transmit FTA broadcasts as part of their service. Proposed section 205PA sets out the 'in-licence-area-rule'. The rule is contravened if a person does no more than re-transmit, within the licence area of a commercial or community licensee, all the programs that are transmitted by that licensee.

Proposed subsection 205PA(2) entitles commercial and community broadcasters to seek relief in the Federal Court if a person is breaching or proposing to breach the in-licence area-rule. Relief available includes an injunction, damages or an account of profits (proposed subsection 205PA(3)).

Proposed subsection 205PA(4) provides that licensees are not entitled to relief under the BSA if they or their assignees or successors have an action under the Copyright Act. On September 2, the Attorney-General introduced the Copyright Amendment (Digital Agenda) Bill 1999. Among other things, the Bill will remedy the anomaly in the FOXTEL case referred to above and give broadcasters a technology neutral right to communicate with the public which will include the right to control re-transmissions. This Bill is designed to give licensees some protection prior to the commencement of the Digital Agenda Bill.

Proposed section 205PB establishes the 'out-of-licence-area-rule' and is substantially in the same terms as the 'in-licence-area-rule' in section 205PA. Equivalent relief for national broadcasters is available under proposed section 205VA where there is a contravention of the 'national broadcasting rule'.

The Bill also imposes requirements on pay TV licensees or related bodies corporate which re-transmit a metropolitan commercial television service in a metropolitan/regional overlap area. Under proposed subsection 205W(1), if a regional commercial television licensee is related to the metropolitan licensee and the regional licensee consents to
re-transmission, the Pay TV service must retransmit the programs of the regional licensee in the overlap area.

Where a Pay TV service re-transmits a metropolitan commercial television service into an overlap area where there is no regional licensee related to the metropolitan broadcaster, proposed subsection 205W(2) requires Pay TV licensees to re-transmit all programs transmitted by regional licensees in the overlap area. As with subsection 205W(1), the consent of the regional licensees is required for re-transmission.

Proposed section 205X provides that the Minister must appoint an arbitrator if a Pay TV service cannot agree on terms with a regional broadcaster to re-transmit programs as required under proposed section 205W.

Proposed Section 205ZB is another section that was not present in the 1998 Bill. It provides that the re-transmission regime inserted by the Bill must be reviewed within 2 years of commencement.

In order to implement the new re-transmission regime, Item 7 repeals existing section 212 of the BSA which deals with the re-transmission of programs.

Item 9 amends existing subclause 7(2) of Schedule 2 extending the list of circumstances where a commercial television licensee may broadcast outside its licence area. Currently, services may be broadcast outside the licence area if the broadcast occurs by accident or as a necessary result of the provision of commercial television services within the licence area.

Item 9 extends the list of permissible outside licence area broadcasts to include:

  • broadcasts made in exceptional circumstances(12) with the written approval of the ABA and
  • broadcasts made to persons not receiving adequate reception of commercial television (that is, persons in 'black-spots') with the written approval of the ABA.

Item 11 applies to commercial radio broadcasters and mirrors the provisions of Item 9 above.

Item 13 applies to community radio and television broadcasters and mirrors the provisions of Items 9 and 11 above.

Items 18 and 19 amend the Copyright Act. Item 19 inserts proposed section 199B which provides that, in certain circumstances, copyright in a broadcast is not infringed by
re-transmissions in declared remote areas. To obtain the protection of the section, the re-transmission:

  • must be made in accordance with an agreement between the re-transmitter and the owner of the copyright in the broadcast or
  • the re-transmitter must have given an undertaking to pay an equitable amount of remuneration determined by the Copyright Tribunal or
  • the re-transmission must be covered by contingent tribunal order. That is an order of the Copyright Tribunal made prior to re-transmission or taking effect on the commencement of re-transmission (see proposed subsection 199B(4)).

Item 18 inserts proposed section 152AB which empowers the Copyright Tribunal to determine the amount that it considers to be equitable remuneration to the owner of copyright in a broadcast for re-transmission in declared remote areas.

These amendments to the Copyright Act have no application to re-transmissions by
self-help providers. They are specifically exempted by proposed subsections 205N(3), 205P(5) and 205V(3) of the BSA.

Schedule 4-- Sponsorship announcements by community broadcasting licensees.

Item 1 will amend the BSA to allow community broadcasting licensees to broadcast sponsorship announcements that run for no more than 5 minutes per hour of broadcasting. The current limit is 4 minutes per hour.

Concluding Comments

The Anti-Hoarding Provisions

The proposed anti-hoarding regime in the Bill imposes a 'must offer' requirement on FTA broadcasters. The proposed anti-hoarding provisions will complement the anti-siphoning regime which prevents a pay TV licensee acquiring the rights to an event or events listed on the anti-siphoning list unless an FTA licensee has also acquired the rights to broadcast the event. As the controversy surrounding the broadcast of the Ashes Series in 1997 demonstrated, the anti-siphoning rules do not necessarily result in a designated event being broadcast on FTA television.

The effectiveness of the proposed 'use or lose' regime as far as the public is concerned will depend upon which events are placed on the anti-hoarding list. In his Second Reading Speech, the Minister for Arts and the Centenary of Federation, Peter McGauran stated that:

'it is envisaged that the Ministerial designation power will be used only in limited circumstances - for example where there is a widespread public expectation, based on past practice, of the full live televising of an event'.(13)

The prospects of the Bill having any impact on hoarding of major sporting events in the immediate term seem to be limited. The Bill will not have any retrospective operation. Proposed section 146E provides that the anti-hoarding rule will only apply if the licensee acquired the right to broadcast when the event was a designated event. The rights to some prominent sporting events have already been secured for some time. For example, the Nine Network holds the rights to FTA Rugby League broadcasts until 2006 and the Seven Network has already acquired the rights to the Ashes cricket in England in 2001. Consequently, the Bill will not impact on the broadcast of these events until after this time.

It is also important to note that neither the ABC nor SBS are compelled by the legislation to show live an event or series transferred under the anti-hoarding amendments.


The proposed re-transmission regime will require pay TV operators to obtain the consent of FTA broadcasters in order to re-transmit their service and will thus supersede the Federal Court's ruling in the Foxtel case. In the SECITALC report, Government, Opposition and Democrat Senators agreed that FTA broadcasters were entitled to compensation for the use of their broadcast signal by pay TV operators.

Opposition and Democrat Senators however expressed concern that the pay TV industry and in particular, their subscribers would be adversely affected if FTA broadcasters and the pay TV industry were unable to come to an agreement to permit re-transmission.

While the Bill does provide for an arbitration procedure in relation to the mandatory
re-transmission of regional commercial television (see proposed sections 205W and 205X), this Bill, like its 1998 predecessor, makes no provision for arbitration if a Pay TV provider and FTA broadcaster cannot agree to terms and conditions for re-transmission outside a metropolitan/regional overlap area.

The Opposition and the Democrat Senators argued that the Copyright Tribunal should be appointed as the arbitrator.

In rejecting the need for an arbitration provision, the Government members of the Committee noted that the Government was allowing a minimum six month period between enactment of the legislation and proclamation by the Governor-General to enable negotiations to occur. It indicated that proclamation of the relevant Schedule could be delayed if FTA broadcasters and Pay TV operators had not reached an agreement. However, the commencement provisions have been changed in the current Bill. Proposed section 2 provides that Schedule 3 will commence three months after Assent. The mechanism identified by the Government Senators in the previous Bill to promote agreement has been removed.

Although the Bill does provide that the re-transmission regime will be reviewed in two years, negotiations between the Pay TV and FTA broadcasters over the price and conditions of re-transmission may be facilitated by the insertion of an arbitration provision prior to the commencement of the new regime.


  1. For an analysis of that Bill, readers are directed to Kilmurray, Ross., Bills Digest No. 6 1998-99, Broadcasting Services Amendment Bill, Law and Bills Digest Group, Department of the Parliamentary Library, 6 August 1998.

  2. Senators and Members can obtain the SECITALC report (together with Minority Reports from the ALP and Democrat Senators) at the website for the Senate Environment, Communications, Information Technology and the Arts Committee.

  3. Amalgamated Television Service Pty Ltd and others v FOXTEL Digital Cable Television Pty Ltd and Another (1996) 136 ALR 319 (the FOXTEL case).

  4. Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment, 1994 p. 24.

  5. Explanatory Memorandum, p. 30.

  6. ibid, p. 35.

  7. As defined in section 18 of the BSA.

  8. As defined in section 17 of the BSA.

  9. Explanatory Memorandum, p. 38.

  10. Explanatory Memorandum, p. 44.

  11. That is, the person is not a self-help provider, the re-transmission is not within a declared remote area and does not occur with the agreement of the commercial or community broadcasting licensee.

  12. The ABA has the discretion to determine what situations constitute 'exceptional circumstances'. The Explanatory Memorandum suggests that the term may include a situation where a natural disaster has rendered another broadcaster transmission infrastructure inoperative, p. 58.

  13. Second Reading Speech, Hansard, 28 June 1999, p. 7615.

Contact Officer and Copyright Details

Kim Jackson and Mark Tapley
1 September 1999
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
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Published by the Department of the Parliamentary Library, 1999.

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