Broadcasting Services (Datacasting Charge) Regulations 2001 2001 No. 336
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 336
Issued by the authority of the Minister for Communications, Information Technology and the Arts
Broadcasting Services Act 1992
Broadcasting Services (Datacasting Charge) Regulations 2001
Section 217 of the Broadcasting Services Act 1992 (the BSA) provides that the Governor-General may make regulations, not inconsistent with the BSA, prescribing matters required or permitted to be prescribed by the BSA, or necessary and convenient to be prescribed for carrying out or giving effect to the BSA.
Section 6 of the Datacasting Charge (Imposition) Act 1998 (the DCI Act) imposes a charge on a transmitter licence (issued under the Radiocommunications Act 1992) held by a commercial television broadcasting licensee, where the transmitter(s) covered by the licence are used by the commercial licensee (or a person authorised by that licensee) to transmit certain datacasting services. Section 8 of the DCI Act provides that the charge is payable by the licensee.
Under a determination made by the Australian Communication Authority under subsection 7(1) of the DCI Act (the Datacasting Charge (Amount) Determination 2001), the amount of the datacasting charge is calculated on the basis of the licensees' gross earnings from datacasting services. This corresponds to the way that commercial licence fees are calculated under the Television Licence Fees Act 1964 (the TV Licence Fees Act).
Section 205B of the BSA requires commercial licensees to keep accounts in relation to the broadcasting service provided under the licence, and provide certain accounting information to the Australian Broadcasting Authority (ABA). Section 205C provides for self-assessment of fees under the TV Licence Fees Act, and for reassessment by the ABA using information provided under section 205B.
Under subclauses 51(6) and (7) of Schedule 4 to the BSA, the ABA is responsible for the collection of the datacasting charge.
The purpose of the accompanying regulations is to impose obligations on transmitter licensees in relation to datacasting services which are equivalent to those in sections 205B and 205C of the BSA, to enable accurate assessment of the charge payable by licensees.
Details of the accompanying regulations are in the Attachment.
The regulations commence on 1 January 2002.
ATTACHMENT
DETAILS OF THE BROADCASTING SERVICES (DATACASTING CHARGE) REGULATIONS 2001
Regulation 1 - Name of Regulations
Regulation 1 provides that the name of the accompanying regulations is the Broadcasting Services (Datacasting Charge) Regulations 2001.
Regulation 2 - Commencement
Regulation 2 provides that the regulations commence on 1 January 2002.
Regulation 3 - Definitions
Regulation 3 provides the definitions of various terms for the purposes of the regulations. Those terms are as follows:
• "charge calculation period", in relation to a licensee, means the period of 12 months used by the licensee to calculate its gross earnings for section 6 of the TV Licence Fees Act that ended during the financial year for which a charge is imposed;
• "chargeable datacasting services", in relation to a licensee, means datacasting services (excluding designated teletext services) provided under the authority of a datacasting licence and transmitted under the authority of a transmitter licence:
- this mirrors the circumstances that must be satisfied in order for a charge to be imposed under section 6 of the DCI Act;
• "datacasting licence" means a datacasting licence under Schedule 6 to the Act;
• "designated teletext services" has the same meaning as in Schedule 4 to the Act;
• "gross earnings" means a licensee's gross earnings from chargeable datacasting services;
• "licensee" means the holder of a transmitter licence;
• "transmitter licence" means a transmitter licence issued under the Radiocommunications Act 1992 and in respect of which a charge is imposed under section 6 of the DCI Act.
Regulation 4 - Licensee to keep accounts - datacasting services
Regulation 4 is intended to impose equivalent obligations on transmitter licensees to those imposed by section 205B of the BSA on commercial television licensees.
Compliance with section 205B is a condition of each commercial television licence (paragraph 7(1)(ia) of Schedule 2 to the BSA), and breach of a condition of a licence is an offence (subsection 139(1) of the BSA). However, there is no licence condition on transmitter licences which corresponds to that imposed by paragraph 7(1)(ia) of Schedule 2 to the BSA. Accordingly, to ensure that regulation 4 is binding on transmitter licensees, regulation 4 is an offence provision.
Under subregulation 4(1), a transmitter licensee commits an offence if the licensee does not:
(a) keep and maintain, in a recognised business or commercial form, financial accounts in relation to chargeable datacasting services provided by the licensee; or
(b) make those accounts available for inspection by the ABA or an authorised officer when requested to do so; or
(c) within 6 months of the end of each charge calculation period, give the ABA:
(i) an audited balance-sheet and an audited profit and loss account, in a form approved by the ABA, in relation to the chargeable datacasting services provided for that period; and
(ii) a statutory declaration stating the gross earnings in relation to the datacasting services provided during that period; or
(d) keep such records in respect of the chargeable datacasting services provided by the licensee as the ABA directs, and give copies of those records to the ABA when requested to do so.
Subregulation 4(2) provides that the statutory declaration referred to in subparagraph (1)(c)(ii) must be made by the licensee's chief executive officer or the licensee's secretary.
Subregulation 4(3) provides that, for the purposes of regulation 4, "authorised officer" means a member, an associate member or a member of the staff of the ABA, authorised by the ABA in writing for the purposes of the regulation.
Regulation 5 - Payment of charge
Regulation 5 contains equivalent provisions to those in section 205C of the BSA.
Subregulation 5(1) provides that, where a licensee pays an amount which it has assessed as due and payable in respect of datacasting services provided, the licensee must provide the ABA with a notice accompanying the payment which shows the manner in which the licensee calculated the charge payable. The notice must be in a form approved by the ABA.
Subregulation (2) establishes a mechanism to enable the ABA to reassess the charge calculated by the licensee, using the information provided by the licensee under regulation 4. Where the amount worked out by the ABA is not the same as the amount paid by the licensee, subregulation 5(2) provides that the ABA must give a licensee a written notice, as soon as practicable, that:
• specifies the amount worked out by the ABA;
• sets out the details of how the ABA worked out the amount;
• if the amount paid is more than the amount worked out by the ABA, specifies the amount overpaid;
• if the amount paid is less than the amount worked out by the ABA, specifies the amount unpaid; and
• if the ABA is satisfied that the licensee deliberately miscalculated the amount of the charge, states that it is so satisfied.
Subregulation 5(3) provides that if the notice under subregulation 5(2) specifies that an amount has been overpaid by the licensee, the ABA must, within 21 days after the notice is issued, arrange for the amount overpaid to be refunded to the licensee.