Broadcasting Legislation Amendment Act (No. 2) 2001

No. 92, 2001

An Act to amend the Broadcasting Services Act 1992, and for other purposes

[Assented to 20 July 2001]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Broadcasting Legislation Amendment Act (No. 2) 2001.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 Transitional—additional commercial television licences in 2‑station markets

Despite the amendments made by items 1, 2 and 3 of Schedule 1, section 38B of the Broadcasting Services Act 1992 continues to apply, in relation to a notice given under subsection 38B(1) of that Act before the commencement of this Act, as if those amendments had not been made.

5 Application—free availability of certain types of programs

The amendments made by items 5 and 6 of Schedule 1 apply in relation to events specified in a notice under subsection 115(1) of the Broadcasting Services Act 1992 either before or after the commencement of this Act.

Schedule 1—Amendments

Broadcasting Services Act 1992

1 Subsection 38B(1)

Repeal the subsection, substitute:

(1) If:

(a) a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

(b) neither of those licences was allocated under section 38A; and

then, within 90 days after the designated time for the licence area:

(d) the existing licensees may give the ABA a joint written notice stating that:

(i) a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

(ii) the joint‑venture company is jointly owned by the existing licensees; and

(iii) the joint‑venture company is formed in Australia or an external Territory and has a share capital; or

(e) each existing licensee may give the ABA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

2 Subsections 38B(3) and (4)

Repeal the subsections, substitute:

Separate applications by existing licensees

(3) If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the designated time for the licence area, apply in writing to the ABA for an additional commercial television broadcasting licence for the licence area.

3 Subsections 38B(7), (8) and (9)

Repeal the subsections, substitute:

(7) If:

(a) each existing licensee gives a notice under paragraph (1)(e); and

(b) by the end of the 12‑month period beginning at the designated time for the licence area:

(i) the ABA has received an application from only one existing licensee (the first licensee) under subsection (3); and

(ii) the ABA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ABA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(8) If:

(a) each existing licensee gives a notice under paragraph (1)(e); and

(b) before the end of the 12‑month period beginning at the designated time for the licence area, the ABA receives:

(i) an application from one existing licensee (the first licensee) under subsection (3); and

(ii) a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ABA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(9) If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ABA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

4 Section 73A

Repeal the section, substitute:

73A Additional licence allocated under section 38B not to result in breach of control rules

(1) If an additional licence is allocated under section 38B, then for the purposes of Divisions 2 and 3 of this Part:

(a) the licence is to be disregarded in relation to a person who is in a position to exercise control of that licence at the time it is allocated; and

(b) the licence is to be so disregarded until that person first ceases to be in a position to exercise control of that licence.

(2) If, during the time a licence is disregarded in relation to a person under subsection (1), that person is in a position to exercise control of another person who is in a position to exercise control of the licence, then, for the purposes of Divisions 2 and 3 of this Part, the licence is also to be disregarded during that time in relation to that other person.

5 After subsection 115(1A)

Insert:

(1AA) Subject to subsection (2), an event specified in a notice under subsection (1) is taken to be removed from the notice 1,008 hours before the start of the event, unless the Minister publishes in the Gazette before that time a declaration that the event continues to be specified in the notice after that time.

(1AB) The Minister may publish a declaration under subsection (1AA) only if the Minister is satisfied that at least one commercial television broadcasting licensee or national broadcaster has not had a reasonable opportunity to acquire the right to televise the event concerned.

6 Subsection 115(1B)

Omit “Subject to subsection (2),”, substitute “Subject to subsections (1AA) and (2),”.

8 After clause 37E of Schedule 4

Insert:

37EA Further HDTV transmission rules for commercial television broadcasting licensees in non‑remote areas

(1) In determining, for the purposes of standards made under subclause 37E(1), whether a commercial television broadcasting licensee has ensured that the HDTV simulcast requirement is met:

(a) if a relevant determination is in force under subclause (2)—ignore HDTV demonstration programs, so long as the licensee complies with such conditions (if any) as are specified in the determination; and

(b) if a relevant determination is in force under subclause (4)—ignore any advertising or sponsorship matter covered by the determination.

ABA determinations

(2) The ABA may, by writing, determine that paragraph (1)(a) applies to HDTV demonstration programs transmitted by a specified commercial television broadcasting licensee during a specified period.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(3) The period specified in a determination under subclause (2) must not be more than 12 months from the commencement of the determination.

(4) The ABA may, by writing, determine that paragraph (1)(b) applies to specified advertising or sponsorship matter transmitted by a specified commercial television broadcasting licensee during a specified period.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(5) The period specified in a determination under subclause (4) must not be more than 2 years from the commencement of the simulcast period for the licence area concerned.

20 hour HDTV quota

(7) In determining, after the end of the 2‑year period referred to in paragraph 37E(2)(b) of this Schedule, whether a commercial television broadcasting licensee has met the HDTV 20 hour requirement for a week, ignore any HDTV demonstration programs transmitted by the licensee during the week.

Disallowable instrument

(8) A determination under subclause (2) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Interpretation

(9) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

(10) In this clause:

HDTV 20 hour requirement means the requirement that a commercial television broadcasting licensee transmit at least 20 hours a week of high‑definition television programs in HDTV digital mode in the licence area concerned on the HDTV version of the commercial television broadcasting service concerned.

HDTV demonstration program means a television program that is:

(a) not longer than 60 minutes; and

(b) transmitted in HDTV digital mode on the HDTV version of a commercial television broadcasting service; and

(c) produced for the sole purpose of allowing the benefits of transmission in HDTV digital mode to be demonstrated to potential purchasers of equipment capable of receiving television programs in HDTV digital mode.

HDTV simulcast requirement means the requirement referred to in paragraph 37E(1)(c) or (d) of this Schedule.

9 After clause 37F of Schedule 4

Insert:

37FA Further HDTV transmission rules for national broadcasters in non‑remote areas

(1) In determining, for the purposes of standards made under subclause 37F(1), whether a national broadcaster has ensured that the HDTV simulcast requirement is met:

(a) if a relevant determination is in force under subclause (2)—ignore HDTV demonstration programs, so long as the national broadcaster complies with such conditions (if any) as are specified in the determination; and

(b) in the case of the Special Broadcasting Service Corporation where a relevant determination is in force under subclause (4)—ignore any advertising or sponsorship matter covered by the determination.

ABA determinations

(2) The ABA may, by writing, determine that paragraph (1)(a) applies to HDTV demonstration programs transmitted by a specified national broadcaster during a specified period.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(3) The period specified in a determination under subclause (2) must not be more than 12 months from the commencement of the determination.

(4) The ABA may, by writing, determine that paragraph (1)(b) applies to specified advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation during a specified period.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(5) The period specified in a determination under subclause (4) must not be more than 2 years from the commencement of the simulcast period for the coverage area concerned.

20 hour HDTV quota

(7) In determining, after the end of the 2‑year period referred to in paragraph 37F(2)(b) of this Schedule, whether a national broadcaster has met the HDTV 20 hour requirement for a week, ignore any HDTV demonstration programs transmitted by the national broadcaster during the week.

Disallowable instrument

(8) A determination under subclause (2) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Interpretation

(9) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

(10) In this clause:

HDTV 20 hour requirement means the requirement that a national broadcaster transmit at least 20 hours a week of high‑definition television programs in HDTV digital mode in the coverage area concerned on the HDTV version of the national television broadcasting service concerned.

HDTV demonstration program means a television program that is:

(a) not longer than 60 minutes; and

(b) transmitted in HDTV digital mode on the HDTV version of a national television broadcasting service; and

HDTV simulcast requirement means the requirement referred to in paragraph 37F(1)(c) of this Schedule.

10 After subclause 37G(1) of Schedule 4

Insert:

(1A) If the regulations determine standards that require each commercial television broadcasting licensee to ensure the requirement in paragraph (1)(c) or (d) is met, the regulations may also make provision for and in relation to exceptions to that requirement.

(1B) In making provision for and in relation to exceptions to that requirement, the regulations may empower the ABA to make written determinations and to impose conditions on commercial television broadcasting licensees in those determinations.

(1C) Subclause (1B) does not limit subclause (1A).

11 After subclause 37H(1) of Schedule 4

Insert:

(1A) If the regulations determine standards that require each national broadcaster to ensure the requirement in paragraph (1)(c) is met, the regulations may also make provision for and in relation to exceptions to that requirement.

(1B) In making provision for and in relation to exceptions to that requirement, the regulations may empower the ABA to make written determinations and to impose conditions on national broadcasters in those determinations.

(1C) Subclause (1B) does not limit subclause (1A).

13 Subclause 2(1) of Schedule 6 (definition of foreign‑language news bulletin)

Repeal the definition.

14 Subclause 2(1) of Schedule 6

Insert:

foreign‑language news or current affairs program has the meaning given by clause 5.

15 Subclause 5(1) of Schedule 6

Repeal the subclause, substitute:

(1) For the purposes of this Schedule, a foreign‑language news or current affairs program means a news or current affairs program that is wholly in a language other than English.

Note: The heading to clause 5 of Schedule 6 is replaced by the heading “Foreign‑language news or current affairs programs”.

16 Subclause 5(4) of Schedule 6

Repeal the subclause.

17 Paragraph 15(3)(c) of Schedule 6

Repeal the paragraph, substitute:

18 Subclause 16(2) of Schedule 6

After “transmitting a bulletin”, insert “, or program,”.

19 Paragraph 21(2)(c) of Schedule 6

Repeal the paragraph, substitute:

Radiocommunications Act 1992

20 Paragraph 100(2)(a)

After “subsection 34(1)”, insert “or (3)”.

[Minister’s second reading speech made in—

House of Representatives on 5 April 2001

Senate on 28 June 2001]

(54/01)