Chapter 2 - Background
The Provisions of the Bill
The Broadcasting Services Amendment Bill (No. 4)
1999 amends the Broadcasting Services Act 1992 (BSA); the Radiocommunications
Act 1992 (RA) and the Administrative Decisions (Judicial Review) Act
1977 (ADJR Act).
The Bill’s primary object is to ensure that
international broadcasting services are not provided contrary to Australia’s
The Bill is intended to establish a new broadcasting licensing scheme for the
regulation of international broadcasting services transmitted from Australia.
Currently, there is no regulatory regime governing international broadcasting
In brief, under this new licensing scheme, all
international shortwave radio services transmitted from Australia, and all
international satellite radio and television broadcasting services originating
in and transmitted from Australia, will be required to obtain an international
broadcasting licence from the Australian Broadcasting Authority (ABA). The ABA
will refer applications for licenses to the Minister for Foreign Affairs for
assessment of whether the proposed service would be contrary to the national
The Bill introduces a new licensing category for
international broadcasting services transmitted from Australia—international
broadcasting services—which will require individual licences. An international broadcasting
service may also fall into other categories of broadcasting service where it is
not only delivered to an audience outside Australia but also to persons in
Australia. Where an international broadcasting service also falls into a
commercial broadcasting, community broadcasting or television broadcasting
category or into other broadcasting services category, it is required to have
licenses to cover both categories.
Proposed new section 18A of the BSA identifies
the type of services that will be classified as international broadcasting
services and thus determines the scope of the regulatory system established by
the legislation. The Bill defines international broadcasting services as
broadcasting services that are targeted, to a significant extent, to audiences
outside Australia and where:
- the means of delivering the services involves the use of a radiocommunications
transmitter in Australia (whether alone or in combination with any other
- the services comply with any determinations or clarifications
under section 19 in relation to international broadcasting services. Under
section 19 the ABA may determine additional criteria or clarify existing
The Explanatory Memorandum made clear that:
The proposed provision is intended to ensure that only those
broadcasting services that are targeted to an audience outside Australia and
transmitted from Australia, and not those services fortuitously received
outside Australia, will be subject to regulation under the BSA as international
The Bill clearly stipulates that broadcasting
services provided by the Australian Broadcasting Corporation (ABC) and the
Special Broadcasting Service Corporation (SBS) do not come under the category
of international broadcasting services for the purposes of the Act.
Also excluded from the definition of
international broadcasting services and defined as an ‘ exempt broadcasting
service’ is a broadcasting service where:
- the service delivers only programs packaged outside Australia
(which may include programs produced in Australia); and where:
- all relevant programming decisions are made outside Australia;
- the service is transmitted from a place outside Australia to an
earth station in Australia for the sole purpose of being immediately
re-transmitted to a satellite; and
- the satellite is a means of delivering the service (whether alone
or in combination with any other means).
The Explanatory Memorandum points out that this
new sub-section is intended to remove from the regulation of the BSA all
satellite pass-through broadcasting services where all of the packaging of
programs and all of the programming decisions are made outside Australia. This
measure is intended to ensure that ‘the amendments do not affect any commercial
proposals to make Australia a programming up-link hub for broadcasting services
delivered by satellite’.
As noted earlier, the Bill is primarily
concerned with ensuring that the content of international broadcasts from
Australia is not contrary to the national interest. The mechanism for
safeguarding Australia’s national interest in this regard is through a new
licensing system. The Bill enables the Minister for Foreign Affairs to
determine whether an international broadcasting service is likely to be
contrary to the national interest. In determining whether a service is likely
to harm the national interest, the Minister must have regard to the likely
effect of the service on Australia’s international relations.
The Bill requires a person wishing to provide an
international broadcasting service to apply to the ABA for an international
broadcasting licence. If the ABA is not satisfied that an applicant is a
company formed in Australia or is a suitable applicant, it must refuse to
allocate an international broadcasting licence to the applicant. In assessing
the suitability of an applicant, the ABA will assess whether the applicant
poses a significant risk of committing an offence against the Act or
regulations under the Act or of a breach of licence conditions. In deciding
whether such a risk exists, the ABA is to take into account:
- the business record of the company; and
- the company’s record in situations requiring trust and candour;
- the business record of each person who is, or who would be, if
international broadcasting licence were allocated to the company, in a position
to control the licence; and
- the record in situations requiring trust and candour of each
person likely to be in a position to control the licence; and
- whether the company, or a person likely to be in position to
control the licence, has been convicted of an offence against this Act or the
Should the ABA refuse to allocate an international
broadcasting licence, it must provide written notice of the refusal to the
applicant. This Bill makes provision for a company to appeal to the
Administrative Appeals Tribunal on an ABA’s decision that the company is an
unsuitable applicant for an international broadcasting licence.
If the ABA is satisfied that the applicant is a
company formed in Australia and ‘does not decide that the applicant is an
unsuitable applicant’, the ABA must refer the application to the Minister for
Foreign Affairs. The Minister will make an assessment on the grounds of
The ABA is required to provide the Minister with
a report on whether the proposed international broadcasting service complies
with the international broadcasting guidelines. The international broadcasting
guidelines will be formulated by the ABA.
The Minister, in determining whether a proposed
international broadcasting service is likely to be contrary to Australia’s
national interest, must have regard to the likely effect of the proposed
service on Australia’s international relations. He or she may take into
consideration the report provided by the ABA.
If, in the opinion of the Minister, the proposed
international broadcasting service is likely to be contrary to Australia’s
national interest, he or she may direct the ABA to refuse to allocate an
international broadcasting licence to the applicant.
On the other hand, if the Minister decides that
the proposed international broadcasting service is unlikely to be contrary to
Australia’s national interest, the Minister will inform the ABA that he or she
has no objection to the allocation of an international broadcasting licence to
the applicant. The ABA must then allocate the licence to the applicant.
After an application has been referred to the
Minister by the ABA, the Minister must make reasonable efforts within 60 days
to either inform the ABA that he or she has no objections to the application or
direct the ABA to refuse a licence to the applicant.
The Bill also confers on the Minister for
Foreign Affairs an on-going power to take action to protect the national
interest in relation to international broadcasting services after a licence has
been issued. The Minister for Foreign Affairs is empowered to direct the ABA to
issue formal warnings, or to suspend or cancel an international broadcasting
licence if the Minister is of the opinion that the service is contrary to the
national interest. Again, the Minister, in determining whether an international
broadcasting service is contrary to Australia’s national interest, must have
regard to the effect of the service on Australia’s international relations.
If, on the direction of the Minister, the ABA
suspends a licence, it must suspend the licence for the period specified in the
If the Minister proposes to direct the ABA to cancel an international
broadcasting licence, he or she must direct the ABA to:
- give the licensee written notice of his or her intention; and
- give the licensee a reasonable opportunity to send a submission
to the ABA in relation to the proposed direction; and
- forward any such submission to the Minister for Foreign Affairs.
This new subsection provides a mechanism to
ensure that before the Minister for Foreign Affairs may direct the ABA to
cancel an international broadcasting licence on national interest grounds, the
holder of the licence will have the opportunity to raise any relevant matters
that should be taken into account by the Minister before he or she proceeds to
direct the ABA to cancel the licence.
The Scrutiny of Bills Committee took note of
this provision and raised the following matter:
There seems to be no obligation on the Minister to actually
consider the submission, and no similar procedure for making a submission where
a licence is suspended rather than cancelled.
Furthermore, the Scrutiny of Bills Committee was
Where a licence is refused, suspended or cancelled, it is also
not clear whether there is any right of appeal to the courts, and whether any
such right of appeal extends to a consideration of the merits of the Minister’s
The Bill sets down specific conditions to be
observed by international broadcasting services, which require the licensee to
keep records of programs broadcast on the international broadcasting service.
It also provides for penalties for persons providing an international
broadcasting service without a licence as well as for licensees found in breach
of the conditions of the international broadcasting licence.
The Bill provides for the ABA to assist the
Minister for Foreign Affairs. The Minister may, by written notice to the ABA,
direct the ABA to prepare a report about whether a specified international
broadcasting service complies with the international broadcasting guidelines
and to provide that report to the Minister. The Minister may also, by written
notice given to the ABA, direct the ABA to obtain specified records of programs
broadcast on the international broadcasting service from an international
broadcasting licensee and to provide these records to the Minister.
The provision is intended to ensure that, if the
Minister for Foreign Affairs wishes to review specific broadcasts which he or
she is concerned may be contrary to the national interest, the Minister may
direct the ABA to acquire the relevant records of broadcasts. The Bill
requires, as a condition of international broadcasting licences, a licensee to
retain in its custody a record of programs broadcast on the international
broadcasting service for 90 days after the broadcast.
The ABA must formulate written guidelines
relating to international broadcasting services but such guidelines may deal
with matters other than Australia’s national interest.
The Bill ensures that only persons who have an
international broadcasting licence allocated by the ABA under the BSA may be
issued with a transmitter licence authorising operation of a transmitter for
transmitting an international broadcasting service by the Australian
Communications Authority (ACA).
Finally the Bill amends the Administrative
Decisions (Judicial Review) Act 1977 to exempt the Minister for Foreign
Affairs from having to provide a statement of reasons for a decision made under
the new international broadcasting scheme.
The Scrutiny of Bills Committee was concerned
about the apparent finality of such decisions. It stated:
If there is no obligation to provide reasons under the Administrative
Decisions (Judicial Review) Act 1977, it is not clear what other rights of
review or appeal (if any) are available to licensees where the Minister makes
such a decision. 
The Scrutiny of Bills Committee has sought
advice from the Minister for Communications, Information Technology and the
Arts but has not yet reported any response.
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