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Part 1

Bills introduced 5 – 28 February 2013

Bills requiring further information to determine human rights compatibility

Broadcasting Legislation Amendment (Digital Dividend) Bill 2013

Introduced into the House of Representatives on 13 February 2013
Portfolio: Broadband, Communications and the Digital Economy

Summary of committee view

1.1        The committee considers that making available additional avenues for the provision of datacasting services generally promotes enjoyment of the rights of persons to seek, receive and impart information and ideas as guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR).

1.2        The committee seeks clarification as to why different types of broadcasters are being treated differently, with one type of broadcaster requiring a licence to broadcast while others can operate without a licence, and seeks clarification as to what effect, if any, this may have on the rights of persons to receive information and ideas. 

Overview

1.3        This bill seeks to gives effect to the government’s decision to make available additional broadcasting spectrum, which is to be cleared of all existing services by 31 December 2014. An auction for the use of the spectrum is anticipated to be held in April 2013. The Australian Communications and Media Authority (ACMA) may agree that successful bidders can commence services in particular geographic areas prior to the spectrum being redesignated out of the broadcasting services bands (BSBs).

1.4        The bill seeks to amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 in relation to the datacasting licensing regime. Presently, all datacasting service providers must hold datacasting licences, but in order to facilitate the early commencement of some services in the new spectrum, the bill will permit certain users to provide datacasting services in the new spectrum without holding a licence. It does this by limiting the scope of datacasting regulation so that only 'designated datacasting services' – generally only commercial and national broadcasters – will be required to hold a datacasting licence.

Compatibility with human rights

1.5        The bill is accompanied by a self-contained statement of compatibility which notes that the bill engages and promotes the right to freedom of expression. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, which includes the 'freedom to seek, receive and impart information and ideas of all kinds'.

1.6        The statement of compatibility begins by noting that the 'measures in the Bill have no impact on any natural persons in the capacity of licensee; only qualified companies are eligible to hold datacasting licences'.[1] The committee notes that while the human rights guaranteed by the ICCPR are enjoyed by natural persons alone (and not by corporations), in certain circumstances the rights of natural persons (such as shareholders) may also be affected by the regulation of corporations, and so engage rights under human rights treaties.[2]

Freedom of expression

1.7        The statement of compatibility states that the bill promotes freedom of expression, and the rights of people to receive and impart information of all kinds through different media, by increasing the potential range of datacasting services available to the public. This analysis is consistent with the positive obligations of the State in relation to promoting the freedom to seek, receive and impart ideas and information under international human rights law. The UN Human Rights Committee has noted the importance of encouraging a diverse range of media to ensure the provision of a wide range of information:

As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.  

States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world.  There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries.  States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.[3]

Limitation on the right to receive information from certain providers of datacasting services

1.8        The effect of the bill is to permit particular providers of datacasting services to provide services in specific geographical areas without the need to hold a licence, but to require other broadcasters to hold a licence to provide the same services. The effect of proposed new section 2A of Schedule 6 to the Broadcasting Services Act 1992 would be that commercial television and radio broadcasters, national broadcasters or a service 'of a kind specified in an instrument', would continue to have to hold a licence to deliver datacasting services, but other services would not.

1.9        Establishing a system whereby one class of broadcasters can broadcast without a licence, whereas another class require a licence to do the same activity, may have an impact on the right of persons in those areas to receive information and ideas. If a broadcaster decides not to continue broadcasting because of the need for a licence (e.g. they can no longer compete with non-licence holders) this could restrict the rights of viewers or listeners to receive information and ideas. Neither the explanatory memorandum nor the statement of compatibility explain what the objective of the different treatment is, or why the different treatment of datacasters is necessary to achieve that objective. The committee considers that more information is needed to determine if this amendment could have the effect of limiting the rights of person to receive information and ideas.

1.10      In addition, the bill enables the Minister to (by instrument) designate other services or persons, who would then be unable to provide datacasting services without a licence.[4]

1.11      Any limitation on the access of users of datacasting services to information and ideas, must satisfy the requirements set out in article 19(3) of the ICCPR:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

1.12      The requirement that a limit be ‘provided by law’ means not only that there be a statute, subordinate legislation or common law rule which permits the restriction, but also that the law satisfy the ‘quality of law’ test. This includes the requirement that the law identify with sufficient precision the circumstances under which the right will be restricted.

1.13      In this case, the bill provides that datacasting services provided by a commercial television or radio broadcasting licensee or a national broadcaster will be subject to a licensing requirement: these terms are defined in the legislation. However, the bill also provides that the Minister may designate other services or persons and thus prevent them from providing these services without a licence (datacasting services ‘of a kind specified’ by the Minister). It is not clear from the bill, the explanatory memorandum or the statement of compatibility what criteria the Minister will apply in making such a determination. The explanatory memorandum simply provides that this will give the Minister 'the flexibility to expand the scope of the datacasting regime if the circumstances warrant'.[5] This restriction might therefore not satisfy the ‘quality of law’ test.

1.14             The committee considers that making available the provision of additional avenues for datacasting services generally promotes enjoyment of the rights of persons to seek, receive and impart information and ideas guaranteed by article 19 of the ICCPR.

1.15             The committee intends to write to the Minister to seek clarification as to why different types of broadcasters are being treated differently, and what effect, if any, this may have on the rights of persons to receive information and ideas. 

1.16             The committee also intends to request further information from the Minister about what criteria the Minister will employ in deciding to designate datacasting services under proposed new clause 2A(2) of Schedule 6 to the Broadcasting Services Act 1992.

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