Appendixes
Appendix 1 - Overseas local content rules
Extract from Australian Film Commission, submission 29, appendix 5
Europe
The main instrument of regulation is the European Council
directive ‘Television without Frontiers’ of 1989 (Directive 89/552/EEC).
Article 4 requires that where practicable a majority of
transmission time should be reserved for European programs. In addition,
article 5 requires that at least 10 per cent shall be devoted to European work
produced by independent producers.
From its monitoring the EC reported that the vast majority of
broadcasters complied with both requirements.
The requirements set out in the European directive are the minimum
to be adopted by the member states. Additional provisions that are not in
conflict with the Directive may be implemented. Article 3 says member states
are ‘free to require television broadcasters under their jurisdiction to comply
with more detailed or stricter rules in the areas covered by this directive.’
The following is a selection of countries where additional content
regulation has occurred.
Denmark: at
least 50 per cent of programs must be of Nordic origin (in addition to European
directive).
France: 50
per cent of prime time (6pm to 11pm each day and 2pm to 6pm on Wednesday) must
be original French language works and an additional 10 per cent must be works
from European countries.
Italy: At
least 50 per cent of all movies screened must be European, of which half must
be Italian.
Spain: 51
per cent of transmission time must be for European works. At least half of the
51 per cent must be in Spanish or one of the other official languages of Spain.
United Kingdom:
Non-European works are limited to less than 50 per cent of the broadcasting
time. For Channel 3 (Independent Television Commission) 65 per cent of
programs, including repeats, must be originally commissioned rather than
acquired by the channel. Channel 3 licence specifies there must be minimum
quantities of particular types of programs. Both Channel 3 and 4 have to devote
a majority of their transmission time to European material, including 25 per
cent of independently produced programs. Plus, there continues to be an
implicit uncodified 86 per cent British quota (Jacka and Cunningham p127).
Canada: 60
per cent of total transmission time has to be Canadian. In addition there are
Canadian content requirements for prime time (6pm to midnight) as follows:
public licensees - 60 per cent; private licensees - 50 per cent.
Source: Franco Papandrea 1997, ‘Cultural Regulation of Australian
Television Programs’, Bureau of Transport and Communications Economics, AGPS
Canberra.
Appendix 2 - Cultural exemptions in International trade agreements
Extract from Department of Communications, Information Technology
and the Arts, submission 32, attachment C
General Agreement on Trade in Services (GATS)
An overwhelming majority of countries have resisted moves at
international trade fora to liberalise trade in the audiovisual sector. A component
of the General Agreement on Trade in Services (GATS), services in the
audiovisual sector were a contested outcome of the Uruguay Round, concluded in
1993. The US, a net exporter of audiovisual services, sought the removal of
restriction to the trade in audiovisual sector. While 125 member countries were
covered by the outcome of the GATS negotiations, only fourteen countries made
specific commitments in the audiovisual sector: Dominican Republic, Hong Kong,
India, Israel, Japan, Kenya, Korea, Malaysia, Mexico, New Zealand, Nicaragua,
Singapore, Thailand and the USA. Of these only New Zealand and the USA
committed to the removal of all regulatory barriers to trade in film and
television industries.
Article IV of the GATT allows members to give preference to local
film production. The GATS requires transparency of audiovisual sector
regulation as for other services. However, Article IV is carried over if a
country does not make a specific commitment for market access and national
treatment. Significant opposition to the US push for liberalised trade came
from European Union member states, particularly France, with participation from
Canada, India, and Australia. Such countries listed broad exemptions to Most
Favoured Nation treatment under the GATS, justified as measures promoting
regional identity, cultural values and linguistic objectives.
Canada
Canada, whose broadcasting system is often compared with
Australia’s, has exempted cultural industries from its free trade agreements
with the world’s major television-producing nation, the US. Canada has exempted
cultural industries from the Free Trade Agreement with the US and the
subsequent North American Free Trade Agreement with the US and Mexico. The US
has not exempted cultural industries from these agreements, but there is
certainly no need to have local content quotas in the US as virtually all
programming screened on American free-to-air television is produced under
American creative control. Canada has a higher transmission quota than
Australia (60 per cent of transmission time must be devoted to Canadian
programming, whereas in Australia the transmission quota is currently 55 per
cent).
European Union
In Europe, the European Union (EU) directive ‘Television without
Frontiers’ came into effect in 1991, and sets a European transmission quota.
The EU took an individual exemption from the audiovisual provisions of the
General Agreement on Trade in Services (GATS) adjunct to the GATT agreement
reached in 1993 in order to preserve quota and other support schemes.
Australia
Australia has made no specific legally binding commitments to the
audiovisual industry under the GATS, preserving the application of Australia’s
local content standards within the World Trade Organisation. Although it is
possible that local content regulations will be raised in the next round of
multilateral trade negotiations to start in the year 2000, particularly by the
US, it is also possible that a number of territories will continue to exempt
the audiovisual industries from the GATS.
Appendix 3 - Network compliance with the Australian content standards
Source: Australian
Broadcasting Authority, Review of the Australian Content Standard -
discussion paper, July 1998, attachment C
1. Australian Content Standard
|
Transmission
quota
|
first
release Australian drama
|
|
1996
|
1997
|
1996
|
1997
|
annual requirement
|
50 per cent
|
50 per cent
|
225 points
|
225 points
|
compliance in -
|
per cent
|
per cent
|
Points
|
hours
|
points
|
hours
|
7 Network -
|
|
|
|
|
|
|
ATN
|
56.4
|
52.7
|
335.69
|
253
|
263.93
|
188.17
|
HSV
|
57.35
|
56.01
|
334.63
|
244.9
|
259.93
|
186.17
|
BTQ
|
57.61
|
53.86
|
331.69
|
251
|
268.43
|
189.95
|
SAS
|
60.98
|
61.08
|
324.29
|
233.25
|
261.48
|
186.68
|
TVW
|
60.54
|
58.95
|
327.69
|
245.15
|
267.82
|
190.13
|
9 Network -
|
|
|
|
|
|
|
TCN
|
60.6
|
62.9
|
268.7
|
149.6
|
272
|
124.8
|
GTV
|
59.1
|
60.0
|
271.7
|
149.9
|
269.6
|
124
|
QTQ
|
62.5
|
63.5
|
270.8
|
148.8
|
270.8
|
124.2
|
10 Network -
|
|
|
|
|
|
|
TEN
|
51.32
|
50.9
|
248.4
|
183
|
266.5
|
189.5
|
ATV
|
51.32
|
50.9
|
248.4
|
183
|
266.5
|
189.5
|
TVQ
|
51.32
|
50.9
|
248.4
|
183
|
266.5
|
189.5
|
ADS
|
51.32
|
50.9
|
248.4
|
183
|
266.5
|
189.5
|
NEW
|
51.32
|
50.9
|
248.4
|
183
|
266.5
|
189.5
|
|
first
release Australian documentary
|
first
release Australian children’s drama
|
|
1996
|
1997
|
1996
|
1997
|
annual requirement
|
10 hours
|
10 hours
|
24 hours
|
28 hours
|
compliance in -
|
hours
|
hours
|
hours
|
hours
|
7 Network -
|
|
|
|
|
ATN
|
20
|
34
|
24
|
27.5
|
HSV
|
20
|
42
|
24
|
27.5
|
BTQ
|
19
|
32.5
|
24
|
27.5
|
SAS
|
17
|
34.5
|
24
|
27.5
|
TVW
|
19
|
35
|
24
|
27.5
|
9 Network -
|
|
|
|
|
TCN
|
19.5
|
24
|
24
|
28
|
GTV
|
19.5
|
23
|
24
|
28
|
QTQ
|
19.5
|
27
|
24
|
28
|
10 Network -
|
|
|
|
|
TEN
|
10
|
10.5
|
24.25
|
28
|
ATV
|
10
|
10.5
|
24.25
|
28
|
TVQ
|
10
|
10.5
|
24.25
|
28
|
ADS
|
10
|
10.5
|
24.25
|
28
|
NEW
|
10
|
10.5
|
24.25
|
28
|
2.
Children’s Television Standards
|
Australian C
classified
|
C classified
|
Australian P
classified
|
|
total hours 1st
release
|
total hours
|
total hours
|
|
1996
|
1997
|
1996
|
1997
|
1996
|
1997
|
annual requirement
|
130
|
130
|
260
|
260
|
130
|
130
|
compliance in -
|
hours
|
hours
|
hours
|
hours
|
hours
|
hours
|
7 Network -
|
|
|
|
|
|
|
ATN
|
144
|
134.0
|
261
|
261.5
|
131
|
130.5
|
HSV
|
144
|
134.5
|
261
|
262.5
|
131
|
130.5
|
BTQ
|
144
|
134.0
|
261
|
262.5
|
131
|
130.5
|
SAS
|
144
|
134.5
|
260.5
|
263.0
|
131
|
130.5
|
TVW
|
144
|
135.0
|
261
|
262.5
|
131
|
130.5
|
9 Network -
|
|
|
|
|
|
|
TCN
|
133
|
133.5
|
268.5
|
271.5
|
131
|
130.5
|
GTV
|
133.5
|
134
|
269.5
|
271.5
|
131
|
130.5
|
QTQ
|
133
|
133.5
|
269
|
272
|
131
|
130.5
|
10 Network -
|
|
|
|
|
|
|
TEN
|
160.25
|
131.5
|
306.75
|
282.5
|
131
|
130.5
|
ATV
|
160.25
|
131.5
|
306.75
|
282.5
|
131
|
130.5
|
TVQ
|
160.25
|
131.5
|
306.75
|
282.5
|
131
|
130.5
|
ADS
|
160.25
|
131.5
|
306.75
|
282.5
|
131
|
130.5
|
NEW
|
160.25
|
131.5
|
306.75
|
280.5
|
131
|
130.5
|
Appendix 4 - Hours of New Zealand programs on New Zealand television
Extract from Australian Film
Commission and others, submission to ABA review of the Australian Content
Standard, 1998, appendix 6, sourced from New Zealand On Air, Local Content
Research New Zealand Television 1995, p4,15
program type
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1997
1st
release
|
drama/comedy
|
39
|
59
|
55
|
86
|
223
|
264
|
283
|
357
|
357
|
335
|
170.88
|
sport
|
509
|
691
|
1653
|
1283
|
1735
|
1075
|
1531
|
1545
|
1077
|
865
|
864
|
news &
current affairs
|
550
|
709
|
997
|
924
|
1009
|
1023
|
10878
|
1045
|
1198
|
1440
|
1437.5
|
entertainment
|
292
|
458
|
528
|
525
|
886
|
588
|
364
|
454
|
302
|
482
|
230.08
|
children’s
|
325
|
440
|
534
|
739
|
1264
|
1019
|
861
|
745
|
745
|
806
|
366.58
|
children’s drama
|
12
|
21
|
25
|
20
|
33
|
27
|
2
|
28
|
12
|
0
|
|
Maori
|
131
|
144
|
143
|
111
|
163
|
170
|
156
|
173
|
173
|
256
|
181
|
documentaries
|
43
|
36
|
107
|
139
|
175
|
190
|
207
|
257
|
252
|
269
|
189.01
|
information
|
213
|
253
|
208
|
213
|
226
|
431
|
477
|
415
|
867
|
1147
|
771.77
|
total NZ content
|
2112
|
2804
|
4249
|
4039
|
5715
|
4788
|
4969
|
5018
|
5066
|
5601
|
4210.85
|
% of schedule
|
23.9
|
31.8
|
24.2
|
31.7
|
30.2
|
23.2
|
23.2
|
19.7
|
19.2
|
21.3
|
16.0
|
total 1st release NZ in prime time
|
686
|
943
|
1189
|
1281
|
1640
|
1769
|
1821
|
1546
|
1586
|
1636
|
|
% of prime time
|
23.5
|
21.6
|
27.2
|
29.3
|
37.5
|
40.5
|
41.7
|
35.4
|
35.4
|
37.5
|
|
‘Figures for 1988-96 are all programs including first release and
repeats. 1997 total figures and first release are shown separately.
‘New Zealand On Air came into existence in 1989.’
Appendix 5 - Expenditure by commercial television on Australian programs
Extract from Australian Film
Commission and others, submission to ABA review of the Australian Content
Standard, 1998, appendix 1, sourced from Australian Broadcasting Authority
Financial Results 1996/97
|
1992/93
|
1993/94
|
1994/95
|
1995/96
|
1996/97
|
change
95/96-96/97
|
Aust. drama
|
89.0
|
72.66
|
72.8
|
77.2
|
73.8
|
- 4.4%
|
children’s drama
|
4.4
|
3.0
|
4.4
|
7.0
|
7.8
|
+ 11.3%
|
documentaries
|
17.9
|
19.3
|
24.0
|
24.0
|
13.3
|
- 44.7%
|
total Australian
|
517.6
|
469.9
|
477.4
|
504.0
|
549.6
|
+ 9.0%
|
|
|
|
|
|
|
|
foreign drama
|
164.9
|
160.9
|
183.4
|
174.2
|
199.6
|
+ 14.6%
|
total OS
|
183.2
|
184.1
|
200.6
|
196.5
|
214.9
|
+ 9.4%
|
|
|
|
|
|
|
|
total spending
|
700.7
|
654.0
|
678.0
|
700.6
|
764.5
|
+ 9.1%
|
‘Note: The figures for children’s drama in 1995/96 reflects the
increases in the children’s drama quota introduced then. Prior to 1996 the
requirement for first release children’s drama was 16 hours and there was no
requirements as there is now for 8 hours of repeat children’s drama.’
Appendix 6 - New Zealand on air subsidies to television production
Extract
from Australian Film Commission and others, submission to ABA review of the
Australian Content Standard, 1998, appendix 7, sourced from New Zealand On Air
annual reports 1994/95, 1995/96, 1996/97
1.
New Zealand On Air Program Funding 1995/96 and 1996/97
|
hours
|
96/97 funding
($000)
|
% of total
production cost
|
hours
|
95/96 funding
($000)
|
% of total
production cost
|
drama/comedy
|
62
|
15,998
|
55%
|
77
|
13,914
|
60%
|
Documentaries
|
99
|
9,758
|
62%
|
107
|
9,329
|
71%
|
children and young persons
|
410
|
10,790
|
78%
|
391
|
9,179
|
79%
|
special interest programs
|
204
|
10,790
|
85%
|
247
|
11,755
|
80%
|
total production funding
|
775
|
44,841
|
|
822
|
44,177
|
|
plus development funding
|
|
260
|
|
|
751
|
|
total television funding
|
|
45,101
|
|
|
44,928
|
|
2. New Zealand On Air subsidised
television program funding 1990-1997 (hours)
program type
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
Drama
|
49
|
77
|
187
|
213
|
229
|
218
|
77
|
62
|
Documentaries
|
60
|
119
|
112
|
214
|
200
|
169
|
107
|
103
|
children’s
|
162
|
283
|
410
|
447
|
476
|
469
|
391
|
410
|
Maori
|
74
|
118
|
145
|
118
|
116
|
n/a
|
n/a
|
n/a
|
special interest
|
189
|
91
|
90
|
134
|
148
|
210
|
247
|
204
|
Total
|
534
|
688
|
944
|
1126
|
1169
|
1066
|
822
|
779
|
‘Note: Since 1994 most support for Maori programming has been through
NZ On Air to Te Manga: Paho, the separate and independent Maori broadcasting
funding agency - hence these figures are not now published in NZ On Air Annual
Reports.’
Appendix 7 - Comparison of Australian and New Zealand subsidies to television production
Extract from Australian
Broadcasting Authority, Review of the Australian Content Standard - discussion
paper, July 1998, attachment H
Australian Film Finance Corporation
(FFC)
Established in 1988, the Australian
Film Finance Corporation (FFC) provides financial support for Australian
feature films, telemovies, mini series and documentaries. Assistance is
targeted to documentary, children’s and adult drama categories as these
programs are perceived to be more important for delivering outcomes in terms of
the cultural objective. Series and serials are not funded. While the FFC
generally invests in television documentaries, it does not invest in other
actuality programs such as infotainment, current affairs, cooking, how to or
sports programs. In allocating subsidies, the FFC looks to the level of non-FFC
participation, the level and appropriateness of marketplace participation,
recoupment prospects for the FFC and other criteria under its guidelines.
New Zealand on Air (NZOA)
New Zealand on Air (NZOA) was
established in 1989. In accordance with the Broadcasting Act, NZOA is required
to reflect and develop New Zealand identity and culture by promoting programs
about New Zealand and New Zealand interests, and promoting Maori language and
Maori culture.
In terms of television, NZOA aims to
ensure a diverse range of New Zealand programs remain part of the main
television schedules. NZOA emphasises three genres - documentaries, drama
programs and programs for special interest groups. The categories of programs
funded by NZOA are broader than those of the FFC and include information,
documentaries, Maori programs, children’s drama and entertainment, news/current
affairs, sports, drama and comedy.
NZOA only funds programs that will have
a broadcast audience and to an extent, NZOA targets high rating programs so
that around 60 percent of the funding for television is for prime time programs
(between 6.00 p.m.-10.30 p.m.). The funding offered by a broadcaster is
generally considered important. NZOA is rarely the sole funder. NZOA, like the
FFC, invests in programs and benefits from any profit made on the programs. In
assessing funding applications, NZOA also considers how well the program
reflects the diverse nature of the New Zealand population and its culture, and
the key personnel involved in the production.
Preliminary assessment of direct
subsidy levels in Australia and New Zealand
NZOA annual reports over the last five
years to 1996-97, provide lists of the categories of television programs funded
during the relevant financial year, the amount of NZOA funding for each program
and NZOA funding as a percentage of the total cost of all programs in a
particular category. The general levels of subsidy provided by the FFC are set
out in the FFC’s guidelines. The FFC subsidy as a proportion of the total
budget for particular program categories has been calculated using information
from FFC annual reports over the last five years. The following table outlines
the different subsidy levels reported by FFC and NZOA.
The fact that NZOA subsidises a wider
range of programs than the FFC makes it difficult to draw direct conclusions
about the relative level of subsidies provided.
Subsidies as
a percentage of total program costs - AUSTRALIA (FFC)
|
program genre/format: FFC guidelines
|
1992/93
|
1993/94
|
1994/95
|
1995/96
|
1996/97
|
adult drama: miniseries, telemovies; generally not
more than 60 %, with 50 % desirable level
|
50%
|
57%
|
57%
|
57%
|
39%
|
documentaries:
non-accord documentaries: 60 % (may be
higher with lower budget production)
accord documentaries: ABC: up to 16x1hr
programs, budgets up to $300k, cash presale of 30% of budget. SBS: up to
10x1hr programs, budgets up to $200k, cash presale of 30% of budget
|
72%
|
64%
|
66%
|
50%
|
67%
|
children’s programs: generally only miniseries of
13x30minutes: generally not more than 50% of the budget
|
62%
|
69%
|
53%
|
60%
|
33%
|
Subsidies as
a percentage of total program costs - NEW ZEALAND (NZOA)
|
program genre/format
|
1992/93
|
1993/94
|
1994/95
|
1995/96
|
1996/97
|
comedy and drama
|
36%
|
49%
|
36%
|
60%
|
55%
|
documentary programs
|
68%
|
50%
|
62%
|
71%
|
62%
|
drama and entertainment
|
63%
|
72%
|
71%
|
79%
|
78%
|
‘Note:
Documentaries under the FFC guidelines
are either accord documentaries financed through a pre-existing arrangement
with a local broadcaster (‘an accord’), or non-accord documentaries which are
one-off projects commissioned by broadcasters outside the terms of the accords.
The FFC has accords with the ABC and SBS but has no formal accord with networks
Seven, Nine and Ten. Accord requirements vary. Most documentaries financed by
the FFC are produced under an accord. Only two non-accord documentaries have
been funded by the FFC in recent years.
‘In addition to the program categories
in the table, NZOA subsidises special interest programs (eg cultural and arts
programs). It appears that these types of programs are similar to those funded
by Australian public broadcasters. In 1996-97, for example, NZOA funded 85 per
cent of the total production costs of special interest programs. The FFC does
not fund this category of programs.’
Appendix 8 - List of submissions
1
NSW Writers’ Centre Inc
2
Mr Julian Pringle
3
Light Source Films Pty Ltd
4
Mr David Muir
5
Mr Desmond Tsui
6
Bower Bird Films
7
Red Productions
8
Ms Glenda Hambly
9
The Funny Farm Pty Ltd
10
Mr John Cundill
11
Piccolo Films Pty Ltd
12
Screen Producers and Directors Association
13
Mr Richard Sarell
14
Ms Lucy Freeman
15
Journocam Productions
16
Samara Films
17
Media Entertainment and Arts Alliance
18
Ms Sonia Borg, AM
19
Film Positive Pty Ltd
20
Michelle MacEwan and Wim Bezemer
21
Gil Scrine Films
22
& 22a Screen Producers Association of Australia
23
& 23a The Australian Children’s Television Foundation
24
New Zealand Government
25
& 25a Federation of Australian Commercial Television Stations
26
Young Media Australia
27
& 27a Australian Screen Directors Association Limited
28,
28a & 28b Attorney General’s Department
29,
29a & 29b Australian Film Commission
30
Australian Writers’ Guild
31
Australian Film Finance Corporation Limited
32
Department of Communications, Information Technology and the Arts
33
Australian Teachers of Media (NSW)
34
Film Australia
35
Department of Foreign Affairs and Trade
36
Australian Screen Culture Industry Association
37 Screen Producers Association of
Australia - Western Australian Chapter
Appendix 9 - Witnesses who appeared before the Committee
Friday
4 December 1998, Committee Room 2S3, Parliament House, Canberra
NSW Writers’ Centre
Mr GG Masterman, QC, Committee Member
Screen
Producers and Directors Association (New Zealand)
Ms Jo Tyndall, Project Blue Sky
Media Entertainment and Arts Alliance
Ms Anne Britton, Joint Federal Secretary
Screen Producers Assn of Australia
Mr Nick Herd, Executive Director
Ms Adrianne Pecotic, General Manager, Grundy
Organisation
Australian Children’s Television Foundation
Ms Pia De Mattina, Corporate Lawyer
New Zealand Govt
Mr Geoff Randal, Deputy High Commissioner
Dr Trevor Matheson, Counsellor
Federation of Australian Commercial Television
Stations (FACTS)
Mr Tony Branigan, General Manager
Young Media Australia
Ms Toni Jupe, Communications and Media Manager
Australian Screen Directors Association
Mr Richard Harris, Executive Director
Australian Broadcasting Authority
Ms Lesley Osborne, Manager Standards
Ms Andree Wright, Director, Policy and Program Content
Ms Maria Vassiliadis, Lawyer
Attorney General’s Department
Mr Bill Campbell, First Assistant Secretary, Office of
International Law
Mr Mark Zanker, Assistant Secretary
Australian Film Commission
Ms Kim Ireland, Policy Adviser
Australian Writers’ Guild
Ms Sue McCreadie, Executive Director
Australian Film Finance Corporation
Mr Michael Ward, Policy Manager
Department of Foreign Affairs and Trade
Mr James Wise, AS, New Zealand and Papua New Guinea
Branch
Ms Marina Tsirbas, Acting Director, Treaties
Secretariat
Department of Communications, Information Technology
and the Arts
Ms
Megan Morris, Assistant Secretary, Film Branch
Dr
Beverly Hart, Assistant Secretary, Licenced Broadcasting Branch
Mr
Rohan Buettel, Assistant Secretary, Legal, Parliamentary and Corporate Branch
Dr
Alan Stretton, First Assistant Secretary, Film, Public Broadcasting and
Intellectual Property Division
Appendix 10 - Copy of advice on side letter form the Attorney General's Department
ATTORNEY GENERAL’S DEPARTMENT
OFFICE OF INTERNATIONAL LAW
3
February 1999
Ms
Roxane Le Guen
Secretary
Environment,
Communications, Information
Technology
and the arts Legislation Committee
Parliament
House
CANBERRA
ACT 2600
Dear
Ms Le Guen
REFERENCE
CONCERNING PARAGRAPH 160 (d) OF THE BROADCASTING SERVICES ACT 1997
I
refer to your letter dated 2 February 1999 concerning the possibility of using
a side letter to clarify certain issues relating to the Closer Economic
Relations (‘CER’) Services Protocol with New Zealand. You state that the
Committee would be grateful for advice on the status of a side letter and the
way in which such a letter is usually used in relation to treaties.
- I understand that at least one of
the issues which is anticipated could be clarified by an exchange of (side)
letters would be the status of New Zealand co-productions with third countries
under the CER Services protocol. The exchange would be intended to embody a
proposed common understanding with New Zealand that New Zealand –third country
co-productions are not covered by the CER Services Protocol. In this respect I
note that at page 17 of the Hansard record of the 4 December 1998 hearing of
the Committee, I gave evidence which would support the proposition that New
Zealand-third country co-productions would not be a New Zealand service for the
purposes of the CER Services Protocol. If that view is correct, then there
would be no need for an exchange of letters. However, others appearing before
the Committee took a different view. Certainly, the Australian Broadcasting
Tribunal, both in its evidence before the Committee, and in its November 1998
review (Attachment D; paragraph 5), supports the use of a ‘side letter’. In
that report it states ‘the ABA will also be seeking a side letter to the CER
Protocol which excludes official New Zealand co-productions with countries
other than Australia.’
- I assume that the letter referred
to would be one to be exchanged between Australia and New Zeland. It is not
uncommon for letters (usually referred to as ‘side letters’ if done at the time
of treaty adoption, signature or ratification) to be exchanged between
countries to record a common understanding of the meaning and application of
particular provisions treaties, particularly bilateral treaties such as the CER
Services Protocol. Those letters would not normally be of treaty status
(unless couched in mandatory language) but would have considerable influence
over the subsequent interpretation of the treaty. This follows Article 31 of
the Vienna Convention on the Law of Treaties.
- Article 31.1 of the Vienna
Convention provides:
‘A treaty
shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its
object and purpose.’
In
relation to letters exchanged after a treaty enters into force, Article 31.3 is
relevant and states, in part, as follows:
‘There
shall be taken into account, together with context:
- any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its
provisions.
- Any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its interpretation.
- The type of letter to which you
refer could fall within either one or both of paragraphs 3 (a) and (b) of
Article 31. In short, an exchange of letters between the two countries
evidencing a common understanding of the application of a provision of a
bilateral treaty, while not binding in and of itself, would normally be
followed in any subsequent application of the treaty. The form and content of
any side letter would be the subject of discussion with the Department of
Foreign Affairs and Trade.
- It is important to note that it
is an exchange of letters which gives rise to a common understanding. It is not simply a matter of one country unilaterally sending its views to the
other. Therefore, use of this mechanism in relation to the interpretation and
application of the CER Services Protocol would require the participation of New
Zealand. A refusal by New Zealand to participate in such an exchange might
indicate that it does not agree with the interpretation which would be the
subject of the proposed exchange.
- I trust the above information
will be of assistance to the Committee.
Yours
sincerely
Bill
Campbell
First
Assistant Secretary
Navigation: Previous Page | Contents