Commonwealth: Broadcasting Services Amendment Act (No. 1) 1999 (Cth)

Broadcasting Services Amendment Act (No. 1) 1999 No. 197, 1999 Broadcasting Services Amendment Act (No. 1) 1999 No. 197, 1999 An Act to amend the Broadcasting Services Act 1992, and for other purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Anti‑hoarding amendments Broadcasting Services Act 1992 Schedule 2—Pay TV programming in regional areas Broadcasting Services Act 1992 Schedule 3—Re‑transmission of programs Part 1—Amendments commencing on Royal Assent Broadcasting Services Act 1992 Telecommunications Act 1997 Part 2—Amendments commencing immediately after the commencement of the Copyright Amendment (Digital Agenda) Act 2000 Broadcasting Services Act 1992 Schedule 4—Sponsorship announcements by community broadcasting licensees Broadcasting Services Act 1992 Broadcasting Services Amendment Act (No. 1) 1999 No. 197, 1999 An Act to amend the Broadcasting Services Act 1992, and for other purposes [Assented to 23 December 1999] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Broadcasting Services Amendment Act (No. 1) 1999. 2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Schedule 2 commences on the 28th day after the day on which this Act receives the Royal Assent. (3) Part 2 of Schedule 3 commences immediately after the commencement of the Copyright Amendment (Digital Agenda) Act 2000. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Anti‑hoarding amendments Broadcasting Services Act 1992 1 After Part 10 Insert: Part 10A—Anti‑hoarding rules Division 1—Introduction 146A Simplified outline 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. The instrument must also specify an offer time for the event or series. The offer time must occur 30 days or more before the start of the event or series unless the Minister is satisfied that the offer time should occur closer to the start of the event or series. • 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, before the offer time, 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. The offer must remain open for acceptance for a minimum period of 7 days. • 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, before the offer time, 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. The offer must remain open for acceptance for a minimum period of 7 days. • 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, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the SBS. The offer must remain open for acceptance for a minimum period of 7 days. • 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, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the ABC. The offer must remain open for acceptance for a minimum period of 7 days. 146B Definitions In this Part: Central‑Western time zone means: (a) the area consisting of: (i) South Australia; and (ii) Broken Hill (within the meaning of the Standard Time Act 1987 of New South Wales); or (b) Western Australia; or (c) the Northern Territory; or (d) the Territory of Christmas Island; or (e) the Territory of Cocos (Keeling) Islands. 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. 146C Designated events and designated series of events (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) The offer time in relation to an event or series of events must occur 30 days or more before the start of the event or the series of events, as the case may be, unless the Minister is satisfied that the offer time should occur closer to the start of the event or series of events, as the case requires. (6) A declaration under this section has effect accordingly. (7) A declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 146CA When event or series is eligible for delayed televising in the Central‑Western time zones (1) The Minister may, by writing, determine that a specified designated event is eligible for delayed televising in the Central‑Western time zones. Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901. (2) The Minister may, by writing, determine that a specified designated series of events is eligible for delayed televising in the Central‑Western time zones. Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901. (3) To avoid doubt, the Minister may make a determination under subsection (1) even if the event concerned is part of a series of events. (4) A determination under this section has effect only for the purposes of paragraphs 146KA(1)(b) and (2)(d) and 146R(1)(b) and (2)(d). (5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (6) A copy of a determination under this section is to be published in the Gazette. Note: The following is an example of a situation in which the Minister might make a determination under this section: in a case where a day‑night cricket match begins at 2 pm in Sydney, delayed televising of the match in Perth would allow Perth viewers the same evening viewing time as viewers in Sydney. 146D Program suppliers (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. Division 2—Commercial television broadcasting licensees 146E Anti‑hoarding rule—licensees (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 1: For compliance by licensees, see clause 7 of Schedule 2. Note 2: For delayed televising in the Central‑Western time zones, see section 146KA. (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. 146F Anti‑hoarding rule—program suppliers (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. 146G What constitutes an offer to transfer rights to televise live events (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. 146H Offers to transfer rights to televise live events (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 period referred to in subsection (5) must not be shorter than 7 days. (7) 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. (8) 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. (9) 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. 146J Contracts to acquire rights to televise live events must authorise the transfer of the rights (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. 146K Simultaneous events in a series 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. Note: For delayed televising in the Central‑Western time zones, see section 146KA. (2) For the purposes of paragraph (1)(c), a licensee is taken to have televised live the whole of an event if the licensee televises live all but an insubstantial proportion of the event. 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 being televised. (3) 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 (4) 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. (5) 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 (4) has effect, in relation to the program supplier, as if that proportion were a designated series of events in its own right. 146KA Delayed televising in the Central‑Western time zones (1) For the purposes of paragraph 146E(1)(c), if: (a) a commercial television broadcasting licensee televises, in the licence area for the licence: (i) a designated event or a designated series of events; or (ii) a part of a designated event or a part of a designated series of events; and (b) the event or series is eligible for delayed televising in the Central‑Western time zones; and (c) apart from this subsection, the televising mentioned in paragraph (a) is not live; and (d) the licence area is wholly or substantially within a particular Central‑Western time zone; and (e) assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney; the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the licensee in the licence area. (2) For the purposes of paragraph 146K(1)(c), 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 wholly or partly overlap; and (c) the licensee televises in the licence area one of those events; and (d) the series is eligible for delayed televising in the Central‑Western time zones; and (e) apart from this subsection, the televising mentioned in paragraph (c) is not live; and (f) the licence area is wholly or substantially within a particular Central‑Western time zone; and (g) assuming the event had been televised live in Sydney—the event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney; the event is taken to be televised live by the licensee in the licence area during that period. (3) For the purposes of subsections (1) and (2), 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 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. (4) 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. (5) 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. Division 3—National broadcasters 146L Anti‑hoarding rule (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. Note: For delayed televising in the Central‑Western time zones, see section 146R. (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. 146M What constitutes an offer to transfer rights to televise live events (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. 146N Offers to transfer rights to televise live events (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 period referred to in subsection (4) must not be shorter than 7 days. (6) 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. 146P Contracts to acquire rights to televise live events must authorise the transfer of the rights (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. 146Q Simultaneous events in a series (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. Note: For delayed televising in the Central‑Western time zones, see section 146R. (2) For the purposes of paragraph (1)(c), a national broadcaster is taken to have televised live the whole of an event if the broadcaster televises live all but an insubstantial proportion of the event. 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 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 being televised. (3) 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. 146R Delayed televising in the Central‑Western time zones (1) For the purposes of paragraph 146L(2)(c), if: (a) a national broadcaster televises, in a coverage area: (i) a designated event or a designated series of events; or (ii) a part of a designated event or a part of a designated series of events; and (b) the event or series is eligible for delayed televising in the Central‑Western time zones; and (c) apart from this subsection, the televising mentioned in paragraph (a) is not live; and (d) the coverage area is wholly or substantially within a particular Central‑Western time zone; and (e) assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney; the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the national broadcaster in the coverage area. (2) For the purposes of paragraph 146Q(1)(c), 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 wholly or partly overlap; and (c) the broadcaster televises in the coverage area one of those events; and (d) the series is eligible for delayed televising in the Central‑Western time zones; and (e) apart from this subsection, the televising mentioned in paragraph (c) is not live; and (f) the coverage area is wholly or substantially within a particular Central‑Western time zone; and (g) assuming the event had been televised live in Sydney—the event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney; the event is taken to be televised live by the national broadcaster in the coverage area during that period. (3) For the purposes of subsections (1) and (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 broadcaster televises 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 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 broadcaster, as if that proportion were a designated series of events in its own right. Division 4—Review of anti-hoarding provisions 146S Review of anti-hoarding provisions (1) Within 2 years after the commencement of this Part, the Minister must cause to be conducted a review of the effectiveness of the anti-hoarding provisions enacted by this Part. (2) The Minister must cause a report to be prepared of the review under subsection (1). (3) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report. 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); Schedule 2—Pay TV programming in regional areas Broadcasting Services Act 1992 1 After Part 8 Insert: Part 8A—Restrictions on subscription television broadcasting services in regional areas etc. 121A Simplified outline 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 3 or more consecutive program items transmitted on that service are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during prime viewing hours. 121B Definitions In this Part: 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 item means a television program, but does not include: (a) advertising or sponsorship matter (whether or not of a commercial kind); or (b) a news program that: (i) is not a regularly scheduled news program; and (ii) is solely or principally about a matter of national significance; or (c) a program that covers an Olympic Games that is being held at the time the program is transmitted; or (d) a program that covers a Paralympic Games that is being held at the time the program is transmitted; or (e) a program that covers a Commonwealth Games that is being held at the time the program is transmitted. 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. 121C Identical program items For the purposes of this Part, in determining whether a program item is identical to another program item, disregard any differences between the techniques used to transmit the program items. 121D Continuity of program items (1) For the purposes of this Part, any break during the transmission of a program item for the purposes of the transmission of other matter: (a) is taken not to affect the continuity of the program item; and (b) is to be counted in working out the length of the program item; and (c) despite paragraph (b), is to be ignored in working out whether the program item is identical to another program item. (2) For the purposes of this Part, any break between program items for the purposes of the transmission of other matter: (a) is taken not to affect the consecutiveness of the program items; and (b) is to be counted in working out the total length of the program items. 121E ABA permission is required to provide certain television services in regional areas (1) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, engages in conduct to which this subsection applies if, without the written permission of the ABA, the subscription television broadcasting licensee or the related body corporate, as the case may be, provides: (a) a subscription television broadcasting service; or (b) a subscription television narrowcasting service; or (c) an open narrowcasting television service; in a regional area, where, to the knowledge of the subscription television broadcasting licensee or the related body corporate, as the case may be, 3 or more consecutive program items transmitted on that service during a particular period: (d) the total length of which is the same as, or shorter than, the length of prime viewing hours; and (e) that occurs within the 24 hour period beginning at the start of prime viewing hours; are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during those prime viewing hours. (2) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, must take all reasonable steps to ensure that the subscription television broadcasting licensee or the related body corporate, as the case may be, does not engage in conduct to which subsection (1) applies. 2 Section 204 (after table item dealing with variation of class licence conditions or imposition of new conditions) Insert: Refusal of permission Subsection 121E(1) The subscription television broadcasting licensee or the related body corporate, as the case may be Grant of permission Subsection 121E(1) 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 subsection 121E(2) (section 121E 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 subsection 121E(2) (section 121E is about requiring the ABA's permission to provide certain television services in regional areas); Schedule 3—Re‑transmission of programs Part 1—Amendments commencing on Royal Assent Broadcasting Services Act 1992 1 Section 204 (at the end of the table) Add: Refusal of permission Subclause 7(2A) of Schedule 2 The licensee seeking the permission Grant of permission Subclause 7(2A) 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 Subclause 8(3) of Schedule 2 The licensee seeking the permission Grant of permission Subclause 8(3) 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 Subclause 9(2A) of Schedule 2 The licensee seeking the permission Grant of permission Subclause 9(2A) 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 Subsection 212(2) Omit all the words after "subsection (1)". 3 At the end of section 212 Add: (3) A reference in this section to a re‑transmission does not include a reference to: (a) a re‑transmission by a commercial broadcasting licensee of the programs transmitted by the licensee's commercial broadcasting service; or (b) a re‑transmission by a community broadcasting licensee of the programs transmitted by the licensee's community broadcasting service; or (c) a re‑transmission by the Australian Broadcasting Corporation of the programs transmitted by any of its national broadcasting services, being national broadcasting services covered by paragraph 13(1)(a); or (d) a re‑transmission by the Special Broadcasting Service Corporation of the programs transmitted by any of its national broadcasting services. 4 Paragraph 7(2)(d) of Schedule 2 Repeal the paragraph. 5 After subclause 7(2) of Schedule 2 Insert: (2A) Each commercial television broadcasting licence is also subject to the condition that the licensee will not provide commercial television broadcasting services under the licence outside the licence area of the licence unless: (a) the provision of those services outside that licence area occurs accidentally; or (b) 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 (c) both: (i) the licensee satisfies the ABA that the provision of those services outside that licence area occurs in exceptional circumstances; and (ii) the ABA has given permission in writing; or (d) all of the following subparagraphs apply: (i) the first‑mentioned licensee satisfies the ABA that there is a person (the eligible person) who is in a commercial television broadcasting licence area (the second licence area) that is not the same as the first‑mentioned licence area and who is not receiving adequate reception of a commercial television broadcasting service provided by a commercial television broadcasting licensee for the second licence area; (ii) the provision of the first‑mentioned services outside the first‑mentioned licence area occurs only to the extent necessary to provide adequate reception of the first‑mentioned services to the eligible person; (iii) the ABA has given permission in writing. 6 Paragraph 8(2)(c) of Schedule 2 Repeal the paragraph. 7 At the end of clause 8 of Schedule 2 Add: (3) Each commercial radio broadcasting licence is also subject to the condition that the licensee will not provide commercial radio broadcasting services under the licence outside the licence area of the licence unless: (a) the provision of those services outside that licence area occurs accidentally; or (b) 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 (c) both: (i) the licensee satisfies the ABA that the provision of those services outside that licence area occurs in exceptional circumstances; and (ii) the ABA has given permission in writing; or (d) all of the following subparagraphs apply: (i) the first‑mentioned licensee satisfies the ABA that there is a person (the eligible person) who is in a commercial radio broadcasting licence area (the second licence area) that is not the same as the first‑mentioned licence area and who is not receiving adequate reception of a commercial radio broadcasting service provided by a commercial radio broadcasting licensee for the second licence area; (ii) the provision of the first‑mentioned services outside the first‑mentioned licence area occurs only to the extent necessary to provide adequate reception of the first‑mentioned services to the eligible person; (iii) the ABA has given permission in writing. 8 Paragraph 9(2)(d) of Schedule 2 Repeal the paragraph. 9 After subclause 9(2) of Schedule 2 Insert: (2A) Each community broadcasting licence is also subject to the condition that the licensee will not provide community broadcasting services under the licence outside the licence area of the licence unless: (a) the provision of those services outside that licence area occurs accidentally; or (b) 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 (c) both: (i) the licensee satisfies the ABA that the provision of those services outside that licence area occurs in exceptional circumstances; and (ii) the ABA has given permission in writing; or (d) all of the following subparagraphs apply: (i) the first‑mentioned licensee satisfies the ABA that there is a person (the eligible person) who is in a community broadcasting licence area (the second licence area) that is not the same as the first‑mentioned licence area and who is not receiving adequate reception of a community broadcasting service provided by a community broadcasting licensee for the second licence area; (ii) the provision of the first‑mentioned services outside the first‑mentioned licence area occurs only to the extent necessary to provide adequate reception of the first‑mentioned services to the eligible person; (iii) the ABA has given permission in writing. 10 Transitional—re‑transmission of programs by licensee outside licence area (1) This item applies if: (a) a permission was given to a commercial broadcasting licensee or a community broadcasting licensee 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; and (c) the permission authorised the licensee to re‑transmit, outside the licence area of the licence, programs transmitted by the licensee's commercial broadcasting service or community broadcasting service, as the case may be. (2) If, apart from this subitem, the permission would expire before the end of the period of 12 months beginning at the commencement of this item, the permission is taken to expire at the end of that period. (3) Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to the re‑transmission by the licensee of programs as mentioned in paragraph (1)(c) of this item during the period: (a) beginning at the commencement of this item; and (b) ending at the expiration of the permission; as if those amendments had not been made. 11 Transitional—pre‑commencement re‑transmission of programs Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to a re‑transmission that occurred before the commencement of this item, as if those amendments had not been made. Telecommunications Act 1997 12 After subsection 48(4) Insert: (4A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992. 13 After subsection 93(2) Insert: (2A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992. Part 2—Amendments commencing immediately after the commencement of the Copyright Amendment (Digital Agenda) Act 2000 Broadcasting Services Act 1992 14 Subsection 212(1) Omit "subsection (2)", substitute "this section". 15 After subsection 212(2) Insert: (2A) However, the rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Copyright Act 1968 for infringement of copyright subsisting in a work, a sound recording or a cinematograph film, where: (a) the infringement is in respect of the re‑transmission by the person of programs as mentioned in subsection (1); and (b) the re‑transmission is not provided by a self‑help provider. 16 At the end of subsection 212 Add: (4) In this section: cinematograph film has the same meaning as in the Copyright Act 1968. self‑help provider has the meaning given by section 212A. sound recording has the same meaning as in the Copyright Act 1968. work has the same meaning as in the Copyright Act 1968. 17 After section 212 Insert: 212A Self‑help providers (1) For the purposes of the application of section 212 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 212B. (4) In this section: declared self‑help provider has the meaning given by section 212B. excluded provider has the meaning given by section 212B. 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). 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. related body corporate has the same meaning as in the Corporations Law. 18 Before section 213 Insert: 212B Declared self‑help providers and excluded providers 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 section 212A. (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 section 212A. 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 section 212A. (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 section 212A. 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. 19 Transitional—pre‑commencement re‑transmission of programs Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to a re‑transmission that occurred before the commencement of this item, as if those amendments had not been made. Schedule 4—Sponsorship announcements by community broadcasting licensees Broadcasting Services Act 1992 1 Subclause 9(3) of Schedule 2 Omit "4 minutes", substitute "5 minutes". [Minister's second reading speech made in— House of Representatives on 28 June 1999 Senate on 9 December 1999] (117/99)