LEGISLATIVE INSTRUMENTS ACT 2003

Section 26 – Revised Explanatory Statement

Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2006 made under the Broadcasting Services Act 1992

On 16 March 2006, the Australian Communications and Media Authority (ACMA) determined the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2006. The determination was made under subsection 125(2) of the Broadcasting Services Act 1992 (the BSA), and is referred to in this revised explanatory paper as ‘the Standard’. The Standard will commence on 15 April 2006.

The Standard

Subsection 125(2) of the BSA provides that:

(2) If:

(a) no code of practice has been registered under section 123 for a matter referred to in subsection 123(2) in a particular section of the broadcasting industry; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;

the ACMA must, by notice in writing, determine a standard in relation to that matter.

Compliance with standards determined by ACMA under section 125 of the BSA is a licence condition which applies to open television narrowcasting services.

Intended Impact and Effect of the Standard

The intended impact of the Standard is to prevent the broadcasting of programs that encourage people to join or finance terrorist organisations, regardless of the licensee’s intention or knowledge about the program content. 

The effect of the Standard is that open television narrowcasting services must not broadcast programs that can reasonably be construed as:

• directly recruiting persons to join, or participate in, the activities of a terrorist organisation; or
• soliciting for, or assisting in the collection or provision of funds to, a terrorist organisation.

The definition of ‘terrorist organisation’ in the Standard is linked to the list of terrorist organisations set out in the Commonwealth Criminal Code Regulations 2002. 

ACMA decided that this requirement should apply regardless of the licensee’s intention or knowledge of the program content so as to provide a clear disincentive to broadcast programs from sources that may carry a risk of breaching the Standard without first viewing or otherwise vetting the programs and making an informed assessment about them. The licensee bears responsibility for the service and as such it is appropriate that it is obliged to be aware of its content. The strict liability approach taken by ACMA is necessary in order to ensure that an effective enforceable obligation is established.

Program content that is part of a bona fide report or comment on a matter of public interest, or gives information about or promotes a political opinion, will not be prohibited. These exceptions limit the scope of the material to which the Standard applies and ensure that freedom of expression is not unduly restricted.

Consultation

Before deciding to determine the Standard, ACMA took the following steps by way of consultation:

On 18 November 2005, ACMA posted on its website a draft instrument inviting public comment by 9 December 2005.

ACMA wrote to the industry bodies, Australian Subscription Television and Radio Association, the Australian Narrowcast Radio Association, the Community Broadcasting Association, the Commercial Radio Association and Free TV Australia with information about the proposals, providing details of how to obtain the draft instrument, and inviting comment.

ACMA received one submission as a result of the consultation.

Description of the provisions of the Standard

Section 1: Name of Standard

This section names the Standard.

Section 2: Commencement

Section 2 provides for the Standard to commence on 15 April 2006.

Section 3:  Object

This section sets out the object of the Standard, namely, to prevent the broadcasting of programs that encourage people to join or finance terrorist organisations.

Section 4: Application

Section 4 specifies that the Standard will apply to persons who provide an open television narrowcasting service under a class licence determined under section 117(e) of the BSA.

Section 5: Definitions

This section defines terms used throughout the Standard. 

Section 6: Recruiting for a terrorist organisation

Section 6 prohibits a licensee to whom the Standard applies from broadcasting a program which can be construed as recruiting for membership or participation in a terrorist organisation.  A licensee will be in breach of this section regardless of whether it knew the program could be construed as recruiting for membership or participation in a terrorist organisation.

Section 7: Financing terrorism

This section prohibits a licensee to whom the Standard applies from broadcasting a program which can be construed as fundraising for a terrorist organisation, including a program that gives details of a bank account or address where funds may be sent.  A licensee will be in breach of this section regardless of whether it knew the program could be construed as fundraising for a terrorist organisation.

Section 8: Bona fide reports and comments not affected

Section 8 of the Standard enables a licensee to broadcast an excerpt of a program which would normally fall within section 6 or 7 of the Standard if:

·        the excerpt is part of a news report, current affairs program, documentary or other program, and;

·        the excerpt is included as part of a bona fide report or comment on a matter of public interest.

Section 9: Programs of political opinion not affected

This section enables a licensee to broadcast a program that gives information about or promotes the beliefs or opinions of terrorist organisations without being in breach of the Standard.