House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

SCHEDULE 4 - AMENDMENTS OF OTHER ACTS

Part 1 - Broadcasting Services

Division 1 - Amendments

Broadcasting Services Act 1992

Item 1 - Section 10AA

513. This item repeals section 10AA of the Broadcasting Services Act. It was inserted into the Broadcasting Services Act by the Territories Legislation Amendment Act to prevent the Broadcasting Services Act from applying wholly to Norfolk Island. Section 10AA is no longer needed as the transition from the Norfolk Island Broadcasting Act to the Broadcasting Services Act as being effected by the Bill.

Division 2 - Application, saving and transitional provisions

Item 2 - Norfolk Island Radio VL2NI

514. This item establishes the transitional arrangements for the existing Norfolk Island radio station (known as 'Norfolk Island Radio', with call sign 'VL2NI') to move from the Norfolk Island Broadcasting Act to the Broadcasting Services Act.

515. Norfolk Island Radio is currently owned and operated by the NIRC. The radio broadcasting services provided by NIRC are best suited to be licensed as a community radio service under Part 6 of the Broadcasting Services Act. However, one of the requirements for licensing a community radio service is that the proposed licensee is an incorporated entity. As the NIRC is not an incorporated entity and does not hold a current Broadcasting Services Act licence, therefore special transitional arrangements are required to facilitate the continuation of the broadcast of Norfolk Island Radio services and for those services to be regulated under the Broadcasting Services Act.

516. The effect of the transitional arrangement under subitem 2(1) of Schedule 4 of the Bill is to prescribe 4 key matters relating to the VL2NI radio services currently being provided in Norfolk Island.

517. The first key matter is to allocate a licence to the NIRC to provide broadcasting services immediately before the commencement of item 2 by the radio broadcast service established by Part 2 of the Norfolk Island Broadcasting Act (refer paragraph 2(1)(a)). Item 2 would commence the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent. The effect of paragraph 2(1)(a) is to remove the obligation for the NIRC to have an incorporated association in place from day one of the transition. There is, however, the expectation that an incorporated association will be established by the NIRC within the legislated timeframes. The NIRC will inform ACMA and seek a transfer of the radio licence from the NIRC to the incorporated association.

518. The second key matter is a deeming rule that provides for the radio services provided under the new licence allocated under paragraph 2(1)(a) (effectively, radio service VL2NI) will be taken to be a 'community radio broadcasting licence' issued in the broadcasting services bands under Part 6 of the Broadcasting Services Act (paragraph 2(1)(b)). Part 6 of the Broadcasting Services Act refers to the licensing and allocation of community radio services under licence area planning.

519. The third key matter is a deeming rule which provides that the licence area for the new community radio licence will be the area defined by the Australian Bureau of Statistics 2016 Census as 'the Territory of Norfolk Island' (paragraph 2(1)(c)). It is expected that ACMA will consider licence area planning for radio broadcasting services on Norfolk Island under Part 3 of the Broadcasting Services Act after the commencement of Part 1 of Schedule 4 to this Bill (noting that item 1 will have the effect of extending the application of the Broadcasting Services Act fully to Norfolk Island).

520. Community radio licences allocated under the Broadcasting Services Act must identify what community interest they are serving. In this instance, the fourth key matter is a deeming rule which provides that the NIRC is taken to represent the 'general geographic area of the community of the Norfolk Island Territory Island' (paragraph 2(1)(d)). This terminology is consistent with community licences issues under Part 6 of the Broadcasting Services Act.

521. There are 2 notes accompanying subitem 2(1). Note 1 clarifies that for the purposes of paragraph 2(1)(b) the allocation of a community licence under Part 6 of the Broadcasting Services Act provides an entitlement to a transmitter licence issued under the Radiocommunications Act 1992. Note 2 relates to the reference at paragraph 2(1)(d) to paragraph 9(2)(b) within Part 5 of Schedule 2 to the Broadcasting Services Act (which sets out standard conditions for community broadcasting services). The condition referred to in paragraph 9(2)(b) of the Schedule 2 to the Broadcasting Services Act is the obligation to continue to serve the community of interest identified when the licence was allocated.

522. Subitem 2(2) identifies key sections of the Broadcasting Services Act that relate to the licence area planning (sections 26 and 29) and the selection and allocation of community broadcasting licences (sections 80, 81, 83 and 84) and indicates that these provisions do not apply to the community radio licence that is allocated to the NIRC for radio service VL2NI under subitem 2(1); and the designation of the licence area for that licence as mentioned in paragraph 2(1)(c)).

523. The effect of subitem 2(3) is to set out 3 specific requirements on the licence allocated to NIRC under subitem 2(1). The requirement under paragraph 2(3)(a) is that the community radio licence allocated by the transitional rule at subitem 2(1) to the NIRC for radio service VL2NI will come into force and be regulated and enforced as a community radio licence by the ACMA, on the commencement of Schedule 4 to the Bill (that time being described as the 'commencement time' and defined in subitem 2(7)).

524. The second requirement indicates that the licence allocated to the NIRC remains in force for a maximum period of 2 years. This overrides the operation of section 89 of the Broadcasting Act that provides for 5 year community radio broadcasting licences.

525. The third requirement in paragraph 2(3)(c) states that the licence allocated to the NIRC cannot be renewed on application by the NIRC. Paragraph 2(3)(c) applies despite sections 90 and 91 of the Broadcasting Services Act; those sections ordinarily allow for a community radio broadcasting licence to apply to the ACMA for renewal and for the ACMA to renew such a community broadcasting licence on the application and subject to certain conditions.

526. The note accompanying subitem 2(3) clarifies that NIRC may apply for the licence to be transferred to another person under section 91A of the Broadcasting Services Act. Specifically, section 91A of the Broadcasting Services Act allows the ACMA to consider the transfer of community radio licence to another party. It is expected that NIRC, during the next 12-18 months, will establish an incorporated body and then apply to the ACMA for its community broadcasting radio licence allocated under subitem 2(1) to be transferred to that new body. That transferred licence can be the subject of an application for renewal to the ACMA and renewal in accordance with usual arrangements under sections 90 and 91 of the Broadcasting Services Act.

527. In recognition that the 2 year licence term may present practical challenges for the transition, the ACMA has been conferred with the power to extend the period by written notice to the licensee by a specified period of no more than 2 years (refer subitem 2(4)). However, the ACMA may only extend the period if and only, before the end of the original 2 year period, the licence has been transferred to another person, or the NIRC has made an application under section 91A of the Broadcasting Services Act for approval of the transfer of the licence to another person (refer subitem 2(5)). The power conferred under subitem 2(4) on the ACMA to extend the duration of the licence can only be exercised once (refer subitem 2(6)).

528. Subitem 2(7) defines the term 'commencement time' (used in subitems 2(1) and 2(3)) to be the time when Part 1 of Schedule 4 to the Act commences. That time is located in clause 2 of the Bill and would be the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent.

Part 2 - Other Acts

Copyright Act 1968

Items 3 and 4 - Paragraph 10(3)(n)

529. Items 3 and 4 remove references to 'Norfolk Island' in paragraph 10(3)(n) of the Copyright Act. Currently, under paragraph 10(3)(n) Norfolk Island is treated as a state for certain purposes under the Copyright Act, along with the self-governing territories of the Australian Capital Territory and the Northern Territory. This change will also affect Part VII of the Copyright Act, which relates to Crown copyright and the use of copyright material for the services of the Crown that applies by reference to 'the Commonwealth or a State'. Most other provisions in the Act refer more fully to the Commonwealth, or a state or territory.

530. As Norfolk Island is no longer a self-governing territory akin to a 'State', the amendments to paragraph 10(3)(n) will result in Norfolk Island being treated as a 'Territory' for all purposes of the Copyright Act. As the Act currently provides that 'the Commonwealth' includes 'the Administration of a Territory' and that 'the Crown' also includes 'the Administration of a Territory' (section 10), the provisions relating to Crown copyright and the use of copyright material for the services of the Crown would extend to the administration of Norfolk Island.

Item 5 - At the end of subsection 144(2)

531. Item 3 replaces the reference to the 'Supreme Court of a State' with a reference to the 'Supreme Court of a State or Territory' in subsection 144(2) of the Act. This amendment will clarify that a member of the Copyright Tribunal of Australia can, before proceeding to discharge their duties of office, take an oath or make an affirmation before a justice or judge of the Supreme Court of a territory, including the Supreme Court of Norfolk Island. This amendment is consequential to the proposed amendments to paragraph 10(3)(n) of the Act by items 3 and 4 (see above) and will result in consistent references to the 'Supreme Court of a State or Territory' throughout the Act.

Item 6 - Subsection 182B(1) (note to the definition of government )

532. Item 4 removes the reference to 'Norfolk Island' in the note to the definition of 'government' in subsection 182B(1) within Part VII of the Act, which refers to the meaning of 'State' in paragraph 10(3)(n). This amendment is consequential to the proposed amendments to paragraph 10(3)(n) of the Act by items 3 and 4 (see above).

Education Services for Overseas Students Act 2000

Items 7, 8, 9 and 10 - Sections 4B and 4C

533. Items 7 and 8 make amendments to section 4B of the ESOS Act to extend the application of the ESOS Act to Norfolk Island. The effect of these amendments is that education providers on Norfolk Island must be registered if they are providing a course to an overseas student.

534. Item 9 ensures that references in the ESOS Act to a 'State' are to be taken to include a reference to Norfolk Island.

535. Item 10 repeals section 4C of the ESOS Act so that the Act applies to Norfolk Island.