Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Broadcasting
Services Amendment Bill 1998
No. ,
1998
(Communications, the Information Economy and the
Arts)
A Bill for an Act to amend the
Broadcasting Services Act 1992, and for other
purposes
Contents
Broadcasting Services Act
1992 8bsa00s1.html
Broadcasting Services Act
1992 8bsa00s1.html
Broadcasting Services Act
1992 8bsa00s1.html
National Transmission Network Sale Act
1998 8bsa00s1.html
Telecommunications Act 1997 8bsa00s1.html
A Bill for an Act to amend the Broadcasting Services
Act 1992, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Broadcasting Services Amendment
Act 1998.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 2 commences on a day to be fixed by Proclamation.
(3) Schedule 3 commences on a day to be fixed by Proclamation.
Subject to section 2, 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Act is amended or repealed as set out in the applicable items in the Schedule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.
Broadcasting
Services Act 1992
1 After Part 10
Insert:
The following is a simplified outline of this Part:
• This Part sets up
a regime to discourage commercial television broadcasting licensees, program
suppliers, the ABC and the SBS from hoarding rights to provide live television
coverage of certain events or series of events.
• The Minister may make a disallowable
instrument designating the events or series that are covered by this
Part.
• If a commercial television broadcasting
licensee acquires a right to provide live television coverage of a designated
event or series, but does not intend to televise the whole or a part of the
event or series, the licensee must offer to transfer the right to televise the
whole or the part of the event or series, for a nominal charge, to the ABC and
the SBS.
• If a commercial television broadcasting
licensee’s program supplier is entitled to confer on the licensee a right
to provide live television coverage of a designated event or series, but does
not confer the right to televise the whole or a part of the event or series, the
program supplier must offer to transfer the right to televise the whole or the
part of the event or series, for a nominal charge, to the ABC and the
SBS.
• If the ABC acquires a right to provide live
television coverage of a designated event or series, but does not intend to
televise the whole or a part of the event or series, the ABC must offer to
transfer the right to televise the whole or the part of the event or series, for
a nominal charge, to the SBS.
• If the SBS acquires a right to provide live
television coverage of a designated event or series, but does not intend to
televise the whole or a part of the event or series, the SBS must offer to
transfer the right to televise the whole or the part of the event or series, for
a nominal charge, to the ABC.
In this Part:
commercial television broadcasting service means a commercial
broadcasting service that provides television programs.
coverage area means an area that corresponds to a licence
area.
designated event has the meaning given by section
146C.
designated series of events has the meaning given by section
146C.
licence area means a licence area for a commercial television
broadcasting licence.
live, in relation to the televising of an event, or series of
events, has the meaning generally accepted within the television
industry.
national television broadcasting service means a national
broadcasting service that provides television programs.
offer time has the meaning given by section 146C.
program supplier has the meaning given by section
146D.
related body corporate has the
same meaning as in the Corporations Law.
supply, in relation to programs, includes confer rights to
televise the programs.
televise means:
(a) in relation to a commercial television broadcasting
licensee—televise on the licensee’s commercial television
broadcasting service; or
(b) in relation to a national broadcaster—televise on the
broadcaster’s national television broadcasting service.
(1) The Minister may, by writing, declare that a specified event is a
designated event for the purposes of this Part.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) The Minister may, by writing, declare that a specified series of
events is a designated series of events for the
purposes of this Part.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(3) To avoid doubt, the Minister may declare an event to be a designated
event under subsection (1) even if the event is part of a series of
events.
(4) A declaration under subsection (1) or (2) must also provide that a
time that:
(a) is ascertained in accordance with the declaration; and
(b) occurs before the start of the event, or the series of events, as the
case may be;
is the offer time in relation to the event or the series of
events, as the case requires, for the purposes of this Part.
(5) A declaration under this section has effect accordingly.
(6) A declaration under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) This section sets out the 3 situations in which a person is a
program supplier of a commercial television broadcasting licensee
for the purposes of this Part.
Agreements
(2) A person is a program supplier of a commercial
television broadcasting licensee for the purposes of this Part if:
(a) the person has an agreement to supply the licensee with programs that
can be televised by the licensee; and
(b) the person supplies, or may reasonably be expected to supply, the
licensee with at least two-thirds of:
(i) all the sporting programs that are, or are to be, televised by the
licensee during the period when the agreement is in force; or
(ii) all the prescribed programs that are, or are to be, televised by the
licensee during the period when the agreement is in force;
whether or not the programs are, or are to be, supplied under the
agreement.
Related body corporate
(3) A person is a program supplier of a commercial
television broadcasting licensee for the purposes of this Part if the
person:
(a) is a related body corporate of the licensee; and
(b) supplies, or proposes to supply, the licensee with any of:
(i) the sporting programs that are, or are to be, televised by the
licensee; or
(ii) the prescribed programs that are, or are to be, televised by the
licensee.
ABA declaration
(4) If:
(a) apart from this subsection, a person is not a program supplier of a
commercial television broadcasting licensee; and
(b) the person supplies, or proposes to supply, the licensee with any
of:
(i) the sporting programs that are, or are to be, televised by the
licensee; or
(ii) the prescribed programs that are, or are to be, televised by the
licensee; and
(c) having regard to the following matters, the ABA is satisfied that the
person should be treated as a program supplier of the licensee:
(i) the purpose underlying this Part;
(ii) whether the relationship between the person and the licensee was
entered into or maintained for the sole or dominant purpose of avoiding the
application of any provision of this Part;
(iii) any other relevant matters;
the ABA may, by writing, declare that the person is a program
supplier of the licensee for the purposes of this Part.
(5) A declaration under subsection (4) has effect accordingly.
(6) The ABA must arrange for a copy of a declaration under subsection (4)
to be:
(a) given to the person and licensee concerned; and
(b) published in the Gazette.
(1) A commercial television broadcasting licensee contravenes the
anti-hoarding rule if:
(a) the licensee has a right to televise live, in the licence area for the
licence, the whole of a designated event or the whole of a designated series of
events; and
(b) the licensee acquired the right when the event was a designated event,
or the series was a designated series of events, as the case may be;
and
(c) either:
(i) the licensee did not televise live in that area any part of the event
or series; or
(ii) the licensee televised live in that area some, but not all, of the
event or series; and
(d) neither the licensee nor the licensee’s program supplier, before
the offer time for the event or series, offered to transfer to each national
broadcaster, in accordance with sections 146G and 146H, the right to televise
live in the corresponding coverage area:
(i) if subparagraph (c)(i) applies—the whole of the event or series;
or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or
series.
Note: For compliance by licensees, see clause 7 of Schedule
2.
(2) For the purposes of subsection (1), a licensee is taken to have
televised live the whole of an event, or the whole of a series of events, if the
licensee televises live all but an insubstantial proportion of the event or
series, as the case may be.
Note: For example, interruptions by way of commercial
breaks, news breaks, program promotions, announcements or brief crosses to other
live events would amount to an insubstantial proportion of the event or series
being televised.
(3) If a commercial television broadcasting licensee has a right to
televise live a substantial proportion of a designated event, this section has
effect, in relation to the licensee, as if that proportion were a designated
event in its own right.
(4) If a commercial television broadcasting licensee has a right to
televise live a substantial proportion of a designated series of events, this
section has effect, in relation to the licensee, as if that proportion were a
designated series of events in its own right.
(1) A commercial television broadcasting licensee’s program supplier
must not intentionally or recklessly contravene the anti-hoarding
rule.
Penalty: 2,000 penalty units.
(2) A commercial television broadcasting licensee’s program supplier
contravenes the anti-hoarding rule if:
(a) the program supplier is entitled to confer on the licensee (the
first licensee) a right to televise live, in the licence area for
the licence, the whole of a designated event or the whole of a designated series
of events; and
(b) the program supplier acquired the entitlement when the event was a
designated event, or the series was a designated series of events, as the case
may be; and
(c) either:
(i) the program supplier did not confer on the first licensee, or on
another commercial television broadcasting licensee whose licence area is the
same as that of the first licensee, the right to televise live in that area any
part of the event or series; or
(ii) the program supplier conferred on the first licensee, or on another
commercial television broadcasting licensee whose licence area is the same as
that of the first licensee, the right to televise live in that area some, but
not all, of the event or series; and
(d) the program supplier did not, before the offer time for the event or
series, offer to transfer to each national broadcaster, in accordance with
sections 146G and 146H, the right to televise live in the corresponding coverage
area:
(i) if subparagraph (c)(i) applies—the whole of the event or series;
or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or
series.
(3) If a commercial television broadcasting licensee’s program
supplier is entitled to confer on the licensee a right to televise live a
substantial proportion of a designated event, this section has effect, in
relation to the program supplier, as if that proportion were a designated event
in its own right.
(4) If a commercial television broadcasting licensee’s program
supplier is entitled to confer on the licensee a right to televise live a
substantial proportion of a designated series of events, this section has
effect, in relation to the program supplier, as if that proportion were a
designated series of events in its own right.
(5) This section has no effect to the extent (if any) to which it purports
to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the
Constitution.
(6) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) For the purposes of this Division, a commercial television
broadcasting licensee, or a program supplier, is taken to offer to transfer to a
national broadcaster the right to televise live:
(a) the whole or a part of a particular designated event; or
(b) the whole or a part of a particular designated series of
events;
if, and only if, the licensee or supplier, as the case may be, offers to
make an arrangement (whatever its terms or form) which in substance gives the
national broadcaster the right to televise live the whole or the part of the
event or series, as the case may be.
(2) In determining whether an arrangement is covered by subsection (1),
regard must be had to the practical effect of the arrangement.
(1) This section applies to an offer by a commercial television
broadcasting licensee, or a program supplier, to transfer to a particular
national broadcaster (the first national
broadcaster) the right to televise live:
(a) the whole or a part of a particular designated event; or
(b) the whole or a part of a particular designated series of
events.
(2) The offer must be in writing.
(3) The offer must be given to the Managing Director of the first national
broadcaster.
(4) The offer must be given to the Managing Director of the first national
broadcaster at or about the same time as a corresponding offer is made to the
Managing Director of the other national broadcaster.
(5) The offer must be open for acceptance by the first national
broadcaster throughout the period:
(a) beginning when the offer is given to the Managing Director of the
first national broadcaster; and
(b) ending immediately before the start of the event or series.
(6) The offer must require that the consideration to be given by the first
national broadcaster is to consist of a promise to pay $1, if and when demanded
by the licensee or the program supplier, as the case requires.
(7) The first national broadcaster is not entitled to accept the offer if
a corresponding offer has already been accepted by the other national
broadcaster, unless the other national broadcaster consents in
writing.
(8) If:
(a) the offer is accepted by the first national broadcaster; and
(b) a corresponding offer is simultaneously accepted by the other national
broadcaster;
then:
(c) the licensee or program supplier, as the case may be, may elect to
treat one of those acceptances as having preceded the other of those
acceptances; and
(d) if such an election is made—the other of those acceptances has
no effect unless the national broadcaster who gave the preceding acceptance
consents in writing.
(1) Neither a commercial television broadcasting licensee, nor the
licensee’s program supplier, must enter into a contract under which the
licensee or the program supplier, as the case may be:
(a) acquires; or
(b) will be entitled to acquire (whether on the fulfilment of a condition
or otherwise);
rights to televise live the whole, or a substantial proportion, of a
designated event, or of a designated series of events, unless the contract
authorises the licensee or program supplier, as the case may be, to make an
offer of the kind referred to in section 146E.
(2) A commercial television broadcasting licensee’s program supplier
must not enter into a contract under which the program supplier:
(a) is entitled; or
(b) will be entitled (whether on the fulfilment of a condition or
otherwise);
to confer on the licensee the right to televise live the whole, or a
substantial proportion, of a designated event, or of a designated series of
events, unless the contract authorises the program supplier to make an offer of
the kind referred to in section 146F.
(3) A contract entered into in contravention of subsection (1) or (2) is
void.
Licensees
(1) For the purposes of this Division, if:
(a) a commercial television broadcasting licensee has the right to
televise live, in the licence area for the licence, a particular designated
series of events; and
(b) during a particular period, 2 or more events in that series (the
simultaneous events) wholly or partly overlap; and
(c) during that period, the licensee televises live in that area one of
those simultaneous events;
the licensee is taken, during that period, to have televised live in that
area the remainder of those simultaneous events.
(2) If a commercial television broadcasting licensee has a right to
televise live a substantial proportion of a designated series of events,
subsection (1) has effect, in relation to the licensee, as if that proportion
were a designated series of events in its own right.
Program suppliers
(3) For the purposes of this Division, if:
(a) a commercial television broadcasting licensee’s program supplier
is entitled to confer on the licensee a right to televise live, in the licence
area for the licence, a particular designated series of events; and
(b) during a particular period, 2 or more events in that series (the
simultaneous events) wholly or partly overlap; and
(c) the program supplier conferred on the licensee the right to televise
live during that period in that area one of those simultaneous events;
the program supplier is taken to have conferred on the licensee the right
to televise live during that period in that area the remainder of those
simultaneous events.
(4) If a commercial television broadcasting
licensee’s program supplier is entitled to confer on the licensee a right
to televise live a substantial proportion of a designated series of events,
subsection (3) has effect, in relation to the program supplier, as if that
proportion were a designated series of events in its own right.
(1) A national broadcaster must not contravene the anti-hoarding
rule.
(2) A national broadcaster contravenes the anti-hoarding rule
if:
(a) the national broadcaster has a right to televise live, in a coverage
area, the whole of a designated event, or the whole of a designated series of
events; and
(b) the national broadcaster acquired the right when the event was a
designated event, or the series was a designated series of events, as the case
may be; and
(c) either:
(i) the national broadcaster did not televise live in that area any part
of the event or series; or
(ii) the national broadcaster televised live in that area some, but not
all, of the event or series; and
(d) the national broadcaster did not, before the offer time for the event
or series of events, offer to transfer to the other national broadcaster, in
accordance with sections 146M and 146N, the right to televise live in that
area:
(i) if subparagraph (c)(i) applies—the whole of the event or series;
or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or
series.
(3) For the purposes of subsection (2), a national broadcaster is taken to
have televised live the whole of an event, or the whole of a series of events,
if the national broadcaster televises live all but an insubstantial proportion
of the event or series, as the case may be.
Note 1: For example, in the case of the ABC, interruptions
by way of news breaks, program promotions, announcements or brief crosses to
other live events would amount to an insubstantial proportion of the event or
series being televised.
Note 2: For example, in the case of the SBS, interruptions
by way of commercial breaks, news breaks, program promotions, announcements or
brief crosses to other live events would amount to an insubstantial proportion
of the event or series being televised.
(4) If a national broadcaster has a right to televise live a substantial
proportion of a designated event, this section has effect, in relation to the
national broadcaster, as if that proportion were a designated event in its own
right.
(5) If a national broadcaster has a right to televise live a substantial
proportion of a designated series of events, this section has effect, in
relation to the national broadcaster, as if that proportion were a designated
series of events in its own right.
(6) This section does not apply to a right acquired by a national
broadcaster because of the operation of Division 2 or this Division.
(1) For the purposes of this Division, a national broadcaster (the
first national broadcaster) is taken to offer to transfer to the
other national broadcaster the right to televise live:
(a) the whole or a part of a particular designated event; or
(b) the whole or a part of a particular designated series of
events;
if, and only if, the first national broadcaster offers to make an
arrangement (whatever its terms or form) which in substance gives the other
national broadcaster the right to televise live the whole or the part of the
event or series, as the case may be.
(2) In determining whether an arrangement is covered by subsection (1),
regard must be had to the practical effect of the arrangement.
(1) This section applies to an offer by a national broadcaster to transfer
to the other national broadcaster the right to televise live:
(a) the whole or a part of a particular designated event; or
(b) the whole or a part of a particular designated series of
events.
(2) The offer must be in writing.
(3) The offer must be given to the Managing Director of the other national
broadcaster.
(4) The offer must be open for acceptance by the other national
broadcaster throughout the period:
(a) beginning when the offer is given to the Managing Director of the
other national broadcaster; and
(b) ending immediately before the start of the event or series.
(5) The offer must require that the consideration to be given by the other
national broadcaster is to consist of a promise to pay $1, if and when demanded
by the national broadcaster who made the offer.
(1) A national broadcaster must not enter into a contract under which the
national broadcaster:
(a) acquires; or
(b) will be entitled to acquire (whether on the fulfilment of a condition
or otherwise);
rights to televise live the whole, or a substantial proportion, of a
designated event, or of a designated series of events, unless the contract
authorises the national broadcaster to make an offer of the kind referred to in
section 146L.
(2) A contract entered into in contravention of subsection (1) is
void.
(1) For the purposes of this Division, if:
(a) a national broadcaster has the right to televise live, in a coverage
area, a particular designated series of events; and
(b) during a particular period, 2 or more events in that series (the
simultaneous events) wholly or partly overlap; and
(c) during that period, the national broadcaster televises live in that
area one of those simultaneous events;
the national broadcaster is taken, during that period, to have televised
live in that area the remainder of those simultaneous events.
(2) If a national broadcaster has a right to televise live a substantial
proportion of a designated series of events, this section has effect, in
relation to the national broadcaster, as if that proportion were a designated
series of events in its own right.
2 Section 204 (after table item dealing with
suspension or cancellation of licence)
Insert:
|
Declaration that a person is a program supplier of a commercial television
broadcasting licensee |
Subsection 146D(4) |
The person |
3 After paragraph 7(1)(h) of Schedule
2
Insert:
(ha) the licensee will not contravene the anti-hoarding rule (within the
meaning of section 146E);
Broadcasting
Services Act 1992
1 After Part 8
Insert:
The following is a simplified outline of this Part:
• Unless the ABA gives permission, a
subscription television broadcasting licensee, or a related body corporate, must
not provide a television service in a regional area if a majority of the program
material televised on that service is the same as that televised by a
metropolitan commercial television broadcasting licensee.
In this Part:
designated program has the meaning given by section
121C.
licence area means a licence area of a commercial television
broadcasting licence.
metropolitan commercial television broadcasting licensee
means a commercial television broadcasting licensee whose licence area
is a metropolitan licence area.
metropolitan licence area means a licence area in which is
situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
prime viewing hours means the hours:
(a) beginning at 6 pm each day or, if another time is prescribed,
beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed,
ending at that prescribed time on the same day.
program material does not include advertising
or sponsorship matter (whether or not of a commercial kind).
regional area means an area that is not part of a
metropolitan licence area.
related body corporate has the same meaning as in the
Corporations Law.
Saturday daytime viewing hours means the hours:
(a) beginning at 10 am each Saturday or, if another time is prescribed,
beginning at that prescribed time each Saturday; and
(b) ending at 6 pm on the same day or, if another time is prescribed,
ending at that prescribed time on the same day.
Sunday daytime viewing hours means the hours:
(a) beginning at 10 am each Sunday or, if another time is prescribed,
beginning at that prescribed time each Sunday; and
(b) ending at 6 pm on the same day or, if another time is prescribed,
ending at that prescribed time on the same day.
(1) The Minister may, by writing, declare that a specified program is a
designated program for the purposes of this Part.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) A declaration under this section has effect accordingly.
(3) A declaration under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
Majority of television programs are the same as metropolitan commercial
programs
(1) Unless the ABA gives permission in writing, a subscription television
broadcasting licensee, or a related body corporate of a subscription television
broadcasting licensee, must not provide:
(a) a subscription television broadcasting service; or
(b) a subscription television narrowcasting service; or
(c) an open narrowcasting television service;
in a regional area if:
(d) a majority of the program material televised on that service during a
particular period:
(i) the length of which is the same as the length of prime viewing hours;
and
(ii) that occurs within the 168 hour period beginning at the start of
prime viewing hours;
is the same as the program material televised by a metropolitan
commercial television broadcasting licensee during those prime viewing hours;
or
(e) a majority of the program material televised on that service during a
particular period:
(i) the length of which is the same as the length of Saturday daytime
viewing hours; and
(ii) that occurs within the 168 hour period beginning at the start of
Saturday daytime viewing hours;
is the same as the program material televised by a metropolitan
commercial television broadcasting licensee during those Saturday daytime
viewing hours; or
(f) a majority of the program material televised on that service during a
particular period:
(i) the length of which is the same as the length of Sunday daytime
viewing hours; and
(ii) that occurs within the 168 hour period beginning at the start of
Sunday daytime viewing hours;
is the same as the program material televised by a metropolitan
commercial television broadcasting licensee during those Sunday daytime viewing
hours.
Particular television programs are the same as metropolitan commercial
programs
(2) Unless the ABA gives permission in writing, a subscription television
broadcasting licensee, or a related body corporate of a subscription television
broadcasting licensee, must not provide:
(a) a subscription television broadcasting service; or
(b) a subscription television narrowcasting service; or
(c) an open narrowcasting television service;
in a regional area if a program televised on that service at a particular
time:
(d) is a designated program; and
(e) was also televised by a metropolitan commercial television
broadcasting licensee at the same time or at any time during the previous 168
hours.
2 Section 204 (after table item dealing with
variation of class licence conditions or imposition of new
conditions)
Insert:
|
Refusal of permission |
Section 121D |
The subscription television broadcasting licensee or the related body
corporate, as the case may be |
|
Grant of permission |
Section 121D |
A commercial television broadcasting licensee any part of whose licence
area is included in the regional area |
3 After paragraph 10(1)(e) of Schedule
2
Insert:
(ea) the licensee will comply with section 121D (which is about requiring
the ABA’s permission to provide certain television services in regional
areas);
4 After paragraph 11(1)(a) of Schedule
2
Insert:
(ab) in the case of a person who provides an open narrowcasting television
service or a subscription television narrowcasting service—the person will
comply with section 121D (which is about requiring the ABA’s permission to
provide certain television services in regional areas);
Broadcasting
Services Act 1992
1 At the end of section 204
Add:
|
Refusal of permission |
Subsection 205P(1) |
The person seeking the permission |
|
Grant of permission to re-transmit programs transmitted by a commercial
broadcasting licensee |
Subsection 205P(1) |
A commercial broadcasting licensee where the re-transmission would occur in
any part of that licensee’s licence area |
|
Grant of permission to re-transmit programs transmitted by a community
broadcasting licensee |
Subsection 205P(1) |
A community broadcasting licensee where the re-transmission would occur in
any part of that licensee’s licence area |
|
Refusal of permission |
Paragraph 7(2)(d) of Schedule 2 |
The licensee seeking the permission |
|
Grant of permission |
Paragraph 7(2)(d) of Schedule 2 |
A commercial television broadcasting licensee where the provision of the
services would occur in any part of that licensee’s licence area |
|
Refusal of permission |
Paragraph 8(2)(c) of Schedule 2 |
The licensee seeking the permission |
|
Grant of permission |
Paragraph 8(2)(c) of Schedule 2 |
A commercial radio broadcasting licensee where the provision of the
services would occur in any part of that licensee’s licence area |
|
Refusal of permission |
Paragraph 9(2)(d) of Schedule 2 |
The licensee seeking the permission |
|
Grant of permission |
Paragraph 9(2)(d) of Schedule 2 |
A community broadcasting licensee where the provision of the services would
occur in any part of that licensee’s licence area |
2 After Part 14A
Insert:
The following is a simplified outline of this Part:
• This Part specifies re-transmissions of radio
and television programs that are exempt from the regulatory regime established
by this Act.
• In the case of a commercial or community
broadcasting service, the exemptions are as follows:
(a) re-transmission within the licence area by a self-help provider for
the sole or principal purpose of obtaining or improving reception;
(b) re-transmission within the licence area by a subscription television
broadcasting licensee, or a related body corporate, with the agreement of the
commercial/community licensee;
(c) re-transmission within the licence area by any person, so long as the
re-transmission is within a declared remote area;
(d) re-transmission outside the licence area by any person, with the
permission of the ABA.
• In the case of a national broadcasting
service, the exemptions are as follows:
(a) re-transmission by a self-help provider for the sole or principal
purpose of obtaining or improving reception;
(b) re-transmission by a subscription television broadcasting licensee, or
a related body corporate, with the agreement of the national
broadcaster;
(c) re-transmission within a declared remote area by any person.
• If a subscription television broadcasting
licensee, or a related body corporate, re-transmits a metropolitan commercial
television service within a metropolitan/regional overlap area, the licensee or
related body corporate may be required to re-transmit, within that overlap area,
a related regional television broadcasting service.
Commercial broadcasting licensee
(1) A reference in this Part to a re-transmission does not include a
reference to a re-transmission by a commercial broadcasting licensee of the
licensee’s commercial broadcasting service.
Community broadcasting licensee
(2) A reference in this Part to a re-transmission does not include a
reference to a re-transmission by a community broadcasting licensee of the
licensee’s community broadcasting service.
ABC
(3) A reference in this Part to a re-transmission does not include a
reference to a re-transmission by the Australian Broadcasting Corporation of any
of its national broadcasting services.
SBS
(4) A reference in this Part to a re-transmission does not include a
reference to a re-transmission by the Special Broadcasting Service Corporation
of any of its national broadcasting services.
Parliamentary broadcasting services
(5) A reference in this Part to a re-transmission does not include a
reference to a re-transmission of a national broadcasting service covered by
paragraph 13(1)(c) (which deals with parliamentary broadcasting
services).
In this Part:
declared remote area has the meaning given by section
205H.
declared self-help provider has the meaning given by section
205K.
excluded provider has the meaning given by section
205K.
isolated location means a place in a State or Territory that
is not at a location in, or adjacent to, an eligible urban area (within the
meaning of section 140 of the Fringe Benefits Tax Assessment Act
1986).
metropolitan commercial television broadcasting licensee
means a commercial television broadcasting licensee whose licence area
is a metropolitan licence area.
metropolitan licence area means a licence area in which is
situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
metropolitan/regional overlap area has the meaning given by
section 205L.
non-profit body means an incorporated body that:
(a) is not carried on for the purposes of profit or gain to its individual
members; and
(b) is prohibited by its constituent document from making any distribution
of money or property to its individual members.
regional commercial television broadcasting licensee means a
commercial television broadcasting licensee whose licence area is a regional
licence area.
regional licence area means a licence area that is not a
metropolitan licence area.
related body corporate has the same meaning as in the
Corporations Law.
self-help provider has the meaning given by section
205J.
(1) The ABA may, by writing, determine that a specified area is a
declared remote area for the purposes of this Part.
(2) A determination under this section has effect accordingly.
(3) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) For the purposes of the application of this Part to a particular
re-transmission of programs, a self-help provider is:
(a) a non-profit body which provides the re-transmission for the sole or
principal purpose of obtaining or improving reception in a small community;
or
(b) a local government body which provides the re-transmission for the
sole or principal purpose of obtaining or improving reception in a community
located in the area served by the body; or
(c) a company which operates a mine and/or related infrastructure at an
isolated location and which provides the re-transmission for the sole or
principal purpose of obtaining or improving reception in a community:
(i) that is located in the vicinity of the mine or infrastructure, as the
case may be; and
(ii) that accommodates the whole or a part of the workforce for the mine
or infrastructure, as the case may be; or
(d) a company which operates a petroleum, oil or gas installation and/or
related infrastructure at an isolated location and which provides the
re-transmission for the sole or principal purpose of obtaining or improving
reception in a community:
(i) that is located in the vicinity of the installation or infrastructure,
as the case may be; and
(ii) that accommodates the whole or a part of the workforce for the
installation or infrastructure, as the case may be; or
(e) 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, as the case may be; or
(f) a person who provides the re-transmission within one or more places
that are all in the same area (within the meaning of section 36 of the
Telecommunications Act 1997) for the sole or principal purpose of obtaining or
improving reception for persons in those places; or
(g) a person who is a declared self-help provider in relation to the
re-transmission;
other than:
(h) a subscription television broadcasting licensee; or
(i) a related body corporate of a subscription television broadcasting
licensee; or
(j) a person who is an excluded provider in relation to the
re-transmission.
(2) Nothing in subsection (1) limits the generality of anything else in
subsection (1).
(3) Subsection (1) does not limit the generality of anything in section
205K.
Declared self-help providers
(1) The Minister may, by writing, determine that a specified person who
provides a re-transmission of programs for the sole or principal purpose of
obtaining or improving reception is a declared self-help provider
in relation to the re-transmission for the purposes of this Part.
(2) The Minister may, by writing, determine that a specified person who
provides a re-transmission of programs for the sole or principal purpose of
obtaining or improving reception in specified circumstances is a declared
self-help provider in relation to the re-transmission for the purposes
of this Part.
Excluded providers
(3) The Minister may, by writing, determine that a specified person who
provides a re-transmission of programs is an excluded provider in
relation to the re-transmission for the purposes of this Part.
(4) The Minister may, by writing, determine that a specified person who
provides a re-transmission of programs in specified circumstances is an
excluded provider in relation to the re-transmission for the
purposes of this Part.
Determination has effect
(5) A determination under this section has effect accordingly.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
For the purposes of this Part, if a part of a metropolitan licence area
of a commercial television broadcasting licence is within a regional licence
area of a commercial television broadcasting licence, the area of overlap
between the 2 licence areas is a metropolitan/regional overlap
area.
(1) For the purposes of this Part, a regional commercial television
broadcasting licensee is related to a metropolitan commercial
television broadcasting licensee at a particular time if:
(a) a majority of the program material televised by the regional
commercial television broadcasting licensee during the previous 168 hour period
is the same as the program material televised by the metropolitan commercial
television broadcasting licensee during that period; and
(b) at that time, a part of the regional commercial television
broadcasting licensee’s licence area is within the metropolitan commercial
television broadcasting licensee’s licence area.
(2) For the purposes of subsection (1), program material
does not include advertising or sponsorship matter (whether or not of a
commercial kind).
Exemption from regulatory regime—re-transmission not in a declared
remote area
(1) The regulatory regime established by this Act (other than Division 4)
does not apply to a service that does no more than re-transmit, within the
licence area of a commercial broadcasting licence or a community broadcasting
licence, programs that are transmitted by the commercial broadcasting licensee
or community broadcasting licensee concerned, so long as the re-transmission is
not within a declared remote area and:
(a) the re-transmission is provided by a self-help provider; or
(b) the re-transmission is provided by a subscription television
broadcasting licensee, or by a related body corporate of a subscription
television broadcasting licensee, with the agreement of the commercial
broadcasting licensee or the community broadcasting licensee
concerned.
Exemption from regulatory regime—re-transmission in a declared
remote area
(2) The regulatory regime established by this Act does not apply to a
service that does no more than re-transmit, within the licence area of a
commercial broadcasting licence or a community broadcasting licence, programs
that are transmitted by the commercial broadcasting licensee or community
broadcasting licensee concerned, so long as the re-transmission is within a
declared remote area.
Immunity from the Copyright Act 1968—re-transmission by a
self-help provider
(3) No action, suit or proceeding lies against a person under the
Copyright Act 1968 in respect of the re-transmission by the person of
programs as mentioned in subsection (1) if the re-transmission is provided by a
self-help provider.
Immunity from certain laws
(4) No action, suit or proceeding lies against a person otherwise than
under this Act or the Copyright Act 1968 in respect of the
re-transmission by the person of programs as mentioned in subsection (1) or
(2).
Exemption from regulatory regime
(1) The regulatory regime established by this Act does not apply to a
service that does no more than re-transmit, outside the licence area of a
commercial broadcasting licence or a community broadcasting licence, programs
that are transmitted by the commercial broadcasting licensee or community
broadcasting licensee concerned, so long as the re-transmission is in accordance
with permission in writing given by the ABA.
Immunity from the Copyright Act 1968—re-transmission by a
self-help provider
(2) No action, suit or proceeding lies against a person under the
Copyright Act 1968 in respect of the re-transmission by the person of
programs as mentioned in subsection (1) if the re-transmission is provided by a
self-help provider.
Immunity from certain laws
(3) No action, suit or proceeding lies against a person otherwise than
under this Act or the Copyright Act 1968 in respect of the
re-transmission by the person of programs as mentioned in subsection
(1).
(1) For the purposes of this Subdivision, a person contravenes the
out-of-licence-area rule if:
(a) the person provides a service that does no more than re-transmit,
outside the licence area of a commercial broadcasting licence or a community
broadcasting licence, programs that are transmitted by the commercial
broadcasting licensee or community broadcasting licensee concerned;
and
(b) the re-transmission is not in accordance with permission in writing
given by the ABA.
(2) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of the out-of-licence-area rule, the Federal Court may,
on the application of the ABA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
Grant of interim injunction
(1) If an application is made to the court for an injunction under section
205Q, the court may, before considering the application, grant an interim
injunction restraining a person from engaging in conduct of a kind referred to
in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
section 205Q, as a condition of granting an interim injunction, to give any
undertakings as to damages.
The court may discharge or vary an injunction granted under this
Subdivision.
The power of the court under this Subdivision to grant an injunction
restraining a person from engaging in conduct of a particular kind may be
exercised:
(a) if the court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person
engages in conduct of that kind.
The powers conferred on the court under this Subdivision are in addition
to, and not instead of, any other powers of the court, whether conferred by this
Act or otherwise.
Exemption from regulatory regime—re-transmission not in a declared
remote area
(1) The regulatory regime established by this Act does not apply to a
service that does no more than re-transmit programs that are transmitted by a
national broadcasting service, so long as the re-transmission is not within a
declared remote area and:
(a) the re-transmission is provided by a self-help provider; or
(b) the re-transmission is provided by a subscription television
broadcasting licensee, or a related body corporate of a subscription television
broadcasting licensee, with the agreement of the national broadcaster
concerned.
Exemption from regulatory regime—re-transmission in a declared
remote area
(2) The regulatory regime established by this Act does not apply to a
service that does no more than re-transmit programs that are transmitted by a
national broadcasting service, so long as the re-transmission is within a
declared remote area.
Immunity from the Copyright Act 1968—re-transmission by a
self-help provider
(3) No action, suit or proceeding lies against a person under the
Copyright Act 1968 in respect of the re-transmission by the person of
programs as mentioned in subsection (1) if the re-transmission is provided by a
self-help provider.
Immunity from certain laws
(4) No action, suit or proceeding lies against a person otherwise than
under this Act or the Copyright Act 1968 in respect of the
re-transmission by the person of programs as mentioned in subsection (1) or
(2).
Related regional commercial television broadcasting
service
(1) If:
(a) a subscription television broadcasting licensee, or a related body
corporate of a subscription television broadcasting licensee, re-transmits,
within a metropolitan/regional overlap area, television programs that are
transmitted by a metropolitan commercial television broadcasting licensee whose
licence area includes that overlap area; and
(b) a regional commercial television broadcasting licensee is related to
the metropolitan commercial television broadcasting licensee; and
(c) the related regional commercial television broadcasting licensee
consents to the subscription television broadcasting licensee, or the related
body corporate, as the case may be, re-transmitting, within that overlap area,
television programs that are transmitted by the related regional commercial
television broadcasting licensee;
the subscription television broadcasting licensee, or the related body
corporate, as the case may be, must re-transmit, within that overlap area, all
the television programs that are transmitted by the related regional television
broadcasting licensee.
No related regional commercial television broadcasting
service
(2) If:
(a) a subscription television broadcasting licensee, or a related body
corporate of a subscription television broadcasting licensee, re-transmits,
within a metropolitan/regional overlap area, television programs that are
transmitted by a metropolitan commercial television broadcasting licensee whose
licence area includes the overlap area; and
(b) there is no regional commercial television broadcasting licensee that
is related to the metropolitan commercial television broadcasting licensee;
and
(c) there are one or more regional commercial television broadcasting
licensees (the unrelated regional licensees) whose licence areas
include that overlap area;
the subscription television broadcasting licensee, or the related body
corporate, as the case may be, must re-transmit, within that overlap area, all
the television programs that are transmitted by each unrelated regional licensee
who consents to that re-transmission.
(1) The subscription television broadcasting licensee, or the related body
corporate, as the case may be, must comply with subsection 205W(1) on such terms
and conditions as are:
(a) agreed between the following parties:
(i) the subscription television broadcasting licensee or the related body
corporate, as the case may be;
(ii) the related regional commercial television broadcasting licensee;
or
(b) failing agreement, determined by an arbitrator appointed by the
parties;
If the parties fail to agree on the appointment of an arbitrator, the
Minister must, by writing, appoint an arbitrator.
(2) The subscription television broadcasting licensee, or the related body
corporate, as the case may be, must comply with subsection 205W(2) in relation
to a particular unrelated regional licensee on such terms and conditions as
are:
(a) agreed between the following parties:
(i) the subscription television broadcasting licensee or the related body
corporate, as the case may be;
(ii) the unrelated regional licensee; or
(b) failing agreement, determined by an arbitrator appointed by the
parties;
If the parties fail to agree on the appointment of an arbitrator, the
Minister must, by writing, appoint an arbitrator.
(3) The regulations may make provision for and in relation to the conduct
of an arbitration under this section.
(1) This section applies to a provision of this Division that authorises
the conduct of an arbitration.
(2) The provision has no effect to the extent (if any) to which it
purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the
Constitution.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) If a person has engaged, is engaging, or is proposing to engage, in
conduct in contravention of section 205W in relation to a particular
metropolitan/regional overlap area, a regional commercial television
broadcasting licensee whose licence area includes that overlap area may apply to
the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the
plaintiff’s option, either damages or an account of profits.
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under
section 205Z, the court may, before considering the application, grant an
interim injunction restraining a person from engaging in conduct of a kind
referred to in that section.
Discharge etc. of injunctions
(2) The Federal Court may discharge or vary an injunction granted under
this Division.
Certain limits on granting injunctions do not apply
(3) The power of the Federal Court under this Division to grant an
injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do
that act or thing—whether or not it appears to the court that the person
intends to refuse or fail again, or to continue to refuse or fail, to do that
act or thing; or
(b) if it appears to the Federal Court that, if an injunction is not
granted, it is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
Other powers of the court unaffected
(4) The powers conferred on the Federal Court under this Division are in
addition to, and not instead of, any other powers of the court, whether
conferred by this Act or otherwise.
3 Section 212
Repeal the section.
4 Paragraph 7(2)(d) of Schedule
2
Repeal the paragraph, substitute:
(d) the licensee will not provide commercial television broadcasting
services under the licence outside the licence area of the licence
unless:
(i) the provision of those services outside that licence area occurs
accidentally; or
(ii) the provision of those services outside that licence area occurs as a
necessary result of the provision of commercial television broadcasting services
within the licence area; or
(iii) the licensee satisfies the ABA that the provision of those services
outside that licence area occurs in exceptional circumstances and the ABA has
given permission in writing.
5 Paragraph 8(2)(c) of Schedule
2
Repeal the paragraph, substitute:
(c) the licensee will not provide commercial radio broadcasting services
under the licence outside the licence area of the licence unless:
(i) the provision of those services outside that licence area occurs
accidentally; or
(ii) the provision of those services outside that licence area occurs as a
necessary result of the provision of commercial radio broadcasting services
within the licence area; or
(iii) the licensee satisfies the ABA that the provision of those services
outside that licence area occurs in exceptional circumstances and the ABA has
given permission in writing.
6 Paragraph 9(2)(d) of Schedule
2
Repeal the paragraph, substitute:
(d) the licensee will not provide community broadcasting services under
the licence outside the licence area of the licence unless:
(i) the provision of those services outside that licence area occurs
accidentally; or
(ii) the provision of those services outside that licence area occurs as a
necessary result of the provision of community broadcasting services within the
licence area; or
(iii) the licensee satisfies the ABA that the provision of those services
outside that licence area occurs in exceptional circumstances and the ABA has
given permission in writing.
7 Transitional—permission given under
section 212 of the Broadcasting Services Act 1992
(1) This item applies to a permission if:
(a) the permission was given under subparagraph 212(1)(b)(ii) of the
Broadcasting Services Act 1992; and
(b) the permission was in force immediately before the commencement of
this item.
(2) The permission has effect, after the commencement of this item, as if
it had been given under subsection 205P(1) of the Broadcasting Services Act
1992 as amended by this Act.
8 Transitional—re-transmissions covered by
section 212 of the Broadcasting Services Act 1992
(1) This item applies to a re-transmission if:
(a) the re-transmission was provided as mentioned in paragraph 212(1)(a)
or (b) of the Broadcasting Services Act 1992; and
(b) the re-transmission occurred before the commencement of this
item.
(2) Despite the repeal of section 212 of the Broadcasting Services Act
1992 by this Act, section 212 of that Act continues to apply after the
commencement of this item, in relation to the re-transmission, as if that repeal
had not been made.
National
Transmission Network Sale Act 1998
9 Section 3 (definition of exempt
re-transmission)
Omit “section 212”, substitute “paragraph 205N(1)(a),
subsection 205N(2) or 205P(1), paragraph 205V(1)(a) or subsection
205V(2)”.
10 Subsections 48(3) and
(4)
Omit “paragraph 212(1)(a) or (b)”, substitute “paragraph
205N(1)(a), subsection 205N(2) or 205P(1), paragraph 205V(1)(a) or subsection
205V(2)”.
11 Subsection 93(2)
Omit “paragraph 212(1)(a) or (b)”, substitute “paragraph
205N(1)(a), subsection 205N(2) or 205P(1), paragraph 205V(1)(a) or subsection
205V(2)”.