Bills Digest No. 60 1997-98
Broadcasting Services Amendment Bill (No. 2) 1997
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have any
official legal status. Other sources should be consulted to determine the
subsequent official status of the Bill.
CONTENTS
Broadcasting Services Amendment Bill (No. 2) 1997
Date Introduced: 1 October 1997
House: Senate
Portfolio: Communications and the Arts
Commencement: On the 28th day after the day on which it receives
the Royal Assent
To amend the Broadcasting Services Act 1992 to restrict the availability
of X and R-rated material through narrowcasting services.
Broadcasting services and licences
The Broadcasting Services Act 1992 (hereafter 'the Act') distinguishes
between two types of subscription television (pay TV):
- broadcasting services. These provide programs intended to appeal to
the general public;
- narrowcasting services. These are services whose reception is limited
by being targeted to special interest groups, or being provided to limited
locations or for a limited period.
Open narrowcasting services are similar to subscription narrowcasting
services except that they are provided free to those with the appropriate
reception equipment.
Pay TV broadcasting services must be licenced under Section 93 (the
original three satellite licences) or Section 96 of the Act, which requires
a separate licence for each service. The Australian Broadcasting Authority
(ABA), which issues the licences, takes a service to be a single stream
of programming material.
Narrowcasting services operate under 'class licences'. Class licences
are not individually issued, but are a standing authority for any operator
to enter the market and provide a service, as long as the operator has
access to delivery capacity and abides by the conditions relevant to the
particular category of class licence.
Codes of Practice
Under section 123 of the Act television broadcasters (commercial, community,
subscription and narrowcasting) must abide by Codes of Practice developed
by industry bodies and approved by the ABA. Sub-section 123(3A) further
requires commercial and community broadcasters to ensure that their Codes
of Practice apply the film classification system administered by the Office
of Film and Literature Classification and that:
- films classified as 'M' can only be shown between noon and 3 p.m.
on school days and between 8.30 p.m. and 5 a.m. at night;
- films classified as 'MA' can only be broadcast between 9 p.m. and
5 a.m. at night;
- films classified as 'M' and 'MA' must not contain material that goes
beyond the previous 'AO' category.
These limitations do not currently apply to the Codes of Practice for
subscription and narrowcasting broadcasters.
Licence conditions concerning X and R-rated programs
In addition to the requirements of their Codes of Practice, commercial
television broadcasting licences and community television broadcasting
licences are subject to the following conditions under Schedule 2 (Parts
3 and 5) of the Act:
- the licencee will not broadcast a program that has been refused classification,
or has been classified as 'X', by the Office of Film and Literature
Classification;
- the licencee will not broadcast a film that has been classified as
'R' unless it has been modified so that it does not portray material
that goes beyond the previous 'AO' classification criteria.
Subscription television broadcasting licencees are also prohibited from
broadcasting 'X' rated programs. They must also ensure that access to
'R' programs is restricted by disabling devices acceptable to the ABA,
but that such programs will not be broadcast until the ABA has conducted
research on community standards for pay television and the ABA has recommended,
and both Houses of Parliament have approved, the broadcast of such programs
(Schedule 2, Part 6).
The ABA survey
The ABA's research was tabled in Parliament on 7 December 1994 in a
report titled R Classified Programs on Pay TV. It recommended that
Parliament approve the broadcast of R-rated programs by subscription television
broadcasting licencees. This recommendation was based on the fact that
82 per cent of a survey of 2440 Australian adults agreed that adults should
have the option of watching R-rated programs on pay TV. Majority support
for this proposition was apparent across all segments of the population
as defined by age, gender, parental status, state of residence and area
of residence. Agreement varied from a high of 93 per cent (18-24 years
of age) to a low of 73 per cent (65 years and over). The respondents to
the survey were informed that the availability of R-rated material would
be conditional on the approval of disabling devices installed in the set
top boxes provided by pay TV operators. Such devices could. for example,
require personal identification numbers to be entered before the programs
could be viewed. Other results of the survey were:
- 54 per cent thought that R-rated sexual violence should be permitted
on pay TV;
- 69 per cent thought that R-rated violence should be permitted;
- 70 per cent thought that R-rated sexual content should be permitted;
- 54 per cent nominated 11 p.m to 6 a.m. as an acceptable time
for the broadcast of R-rated programs on pay TV;
- 50 per cent nominated 9-11 p.m. as an acceptable time;
- 10 per cent said 'never/no time';
- 8 per cent said that any time was acceptable (respondents could
give more than one response).
'Nightmoves'
As noted above, the codes of practice for subscription television broadcasters
do not contain the restrictions on 'M' and 'MA' programs that apply to
commercial and community broadcasters. Similarly, the licence condition
prohibiting 'X' and 'R' material does not apply to class licences for
narrowcasters. These omissions have been exploited by the pay TV operator
Galaxy Media, which established a channel ('Nightmoves') to broadcast
erotica as a narrowcasting service. Galaxy has claimed that Nightmoves
has 12000 subscribers and cost $7m to establish. The channel broadcasts
between 11 pmand 4 am and can only be viewed with PIN number access codes.
Because of these restrictions, the channel can be classified as a narrowcasting
service and avoid the conditions attached to subscription licences.
Parliamentary reports
The Senate Select Committee on Community Standards Relevant to the Supply
of Services Utilising Electronic Technologies (hereafter 'the Committee')
released its Report on R-Rated Material on Pay TV Part 1 in February
1995. This report was to assist the Senate in its decision on the availability
of R-rated material on pay TV as per Part 6 of Schedule 2 of the Act.
The Committee expressed reservations about the ABA's research because
of technical and methodological questions which were not discussed in
the report. The Committee elected to draw its own conclusions on the basis
of evidence presented to the Committee rather than the ABA survey.
The Committee recommended that R-rated material be not permitted on
pay TV because of:
- The community's concerns about the levels of violence in the media,
especially sexual violence and of demeaning and exploitative sexual
material.
- The lack of consensus on the effects of such depections on attitudes
and anti-social behaviour.
- The lack of clarity in the R classification.
A further report (Report on R-Rated material on Pay TV Part 2)
was issued on October 1996. It recommended that the Act be amended to
define with greater precision the manner in which reception of subscription
narrowcasting services is to be limited under s.17 of the Act, so as to
prevent the broadcast of R and X-rated material.
Government policy decision
On the 8 April 1997 the Government announced that it would ban X rated
programs (or any replacement category) on pay TV narrowcasting services
and that such services would be only be allowed to provide R-rated programs
late at night and with screening devices requiring Personal Identification
Numbers. Open narrowcasting services would be subject to the same conditions
that apply to commercial broadcasting services.
The Bill will accomplish these objectives by inserting new sub-sections
123 (3C and 3D) in the Act. These require the Code of Practice for open
narrowcasting television services to contain the same limitations on the
showing of 'M' and 'MA' programs that apply to the commercial and community
television services.
The Bill will also add new sub-sections 3 and 4 to Clause 11 of Schedule
2 of the Act. These will apply to class licences the same conditions concerning
'X' and 'R' rated films that apply to commercial and community television
broadcasting licences.
It should be noted that the Bill will not change the conditions applying
to subscription television licences, in that any broadcasting of 'R' classified
programs will still require the approval of both Houses of Parliament.
Clause 1 of Schedule 1 inserts new subsections 123(3C) and 123(3D).
The former provides that industry groups representing open narrowcasting
service providers must ensure that their codes of practice:
- apply the classification system administered by the Office of Film
and Literature Classification;
- provide for the modification of films so that they are suitable
for broadcasting;
- require that 'M' films be broadcast only between 8.30 pm and
5 am, or between noon and 3 pm on school days;
- require that films classified as 'MA' be broadcast only between
9 pm and 5 am; and
- provide for consumer advice on the reasons for particular
classifications of films.
New subsection 3D requires the codes of practice to ensure that films
classified as 'M' or 'MA' do not contain material that goes beyond the
previous 'AO' classification.
Clause 6 of Schedule 1 adds new subsections 11(3) and 11(4) to Schedule
2 of the Act. The former makes it a condition of class licences for open
narrowcasting services that licensees will not broadcast programs that
have been refused classification or have been classified as 'X' or 'R'
films unless they have been modified. New subsection 11(4) makes it a
condition of subscription narrowcasting class licences that the licencess
will not broadcast programs that have been refused classification or classified
as 'X'.
Kim Jackson
22 October 1997
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Last updated: 23 October 1997
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