HOUSE OF REPRESENTATIVES
PARLIAMENT OF FIJI
PARLIAMENTARY PAPER NO. 61 OF 2006
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Published by the Department of the Legislature, Parliament House, SUVA
REPORT OF THE SECTOR STANDING COMMITTEE ON ADMINISTRATIVE SERVICES
ON THE
BROADCAST LICENSING BILL, 2006
[NO. 10 OF 2006]
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1.0 Introduction
1.1 On Tuesday 8th August 2006, the Honourable Minister for Information and Communications introduced a Bill to establish the Broadcast Licensing Authority for the purpose of regulating broadcasting and other related matters.
1.2 During its second reading, the House resolved that the Bill be referred to the Sector Standing Committee on Administrative Services for its consideration.
2.0 Terms of Reference
2.1 Pursuant to the resolution of the House of Representatives, the terms of reference for the Sector Standing Committee on Administrative Services is to inquire into and make recommendations relating to any aspect of the Broadcast Licensing Bill (Bill No. 10 of 2006) and to report its findings to the House at its September 2006 meeting.
3.0 Membership
3.1 The Membership of the Sector Standing Committee is as follows:
Hon. Mataiasi Ragigia (Chairperson)
Hon. Nanise Nagusuca
Hon. Ratu Jone Waqairatu
Hon. Konisi Yabaki
Hon. Joji Banuve
Hon. Surendra Lal
Hon. Vyas Deo Sharma
Hon. Dewan Chand
Hon. Azim Hussein
Hon. Senator Ratu Kinijoji Vakawaletabua
3.2 During the period of review, the following changes to the membership of the Sector Standing Committee arose and alternate membership were made pursuant to Standing Orders 94(4) and (5) where necessary:
Hon. Simione Kaitani was the alternate Member for Hon. Mataiasi Ragigia and was also the Acting Chairperson in his absence.
Hon. Damodran Nair was the alternate Member for Hon. Vyas Deo Sharma.
Hon. Kamlesh Reddy was the alternate Member for Hon. Surendra Lal.
Hon Mitieli Bulanauca was the alternate Member for Hon. Ratu JoneWaqairatu.
Hon. Irami Matairavula was the alternate Member for Hon. Konisi Yabaki.
Hon. Senator Ratu Solomone Buaserau was the alternate Member for Hon. Senator Ratu Kinijoji Vakawaletabua.
4.0 Procedures and Programme
4.1 The Committee had its first meeting on Monday, 14th August 2006 and deliberated thereafter on the Bill. It was briefed on the salient features of the Bill by the following officials:
Mr Eliki Bomani, Deputy Secretary Information;
Mr. Josua Turaganivalu, Deputy Secretary Communication
Mr. Jale Curuki, Acting Director for Communication
Mr. Soro Toutou, Acting Director for Information
Mr Rupeni Nawaqakuta, First Parliamentary Counsel.
4.2 Advertisements calling for public submissions on the Bill were made in the three daily newspapers on Saturday 12th August 2006 and Monday 14th August 2006. The deadline for written submissions was 4.00 pm on Friday, 25th August 2006. The advertisements were also placed in the Nai Lalakai and Shanti Dutt on Tuesday 22nd August 2006.
5.0 Background to the Bill
5.1 The Broadcast Licensing Bill was introduced in the House of Representatives by the Minister for Information and Communications, Hon. Isireli Leweniqila, on 9th August 2006
5.2 The Minister mentioned that the establishment of a Broadcast Licensing Authority (Authority) was a direct response to concerns raised over the years about the need to monitor standards in the broadcast industry. At present, there is no legislation to provide for qualitative controls for commercial radio and television, except regulatory functions concerning the licensing of broadcast spectrums for commercial radio and television broadcasters.
5.3 The Authority will issue, renew and regulate licensing of various types of broadcasting. It will establish codes of conduct for programming, advertising and technical aspects for the purpose of the Act and monitor compliance by broadcasters.
5.4 The Authority will establish a system for orderly planning in relation to the use of broadcasting frequencies through the development of a Broadcasting Frequency Plan.
5.5 The Authority will also hear complaints on breaches of licence conditions and on the codes of conduct and hear appeals and issue sanctions and penalties for offences wherever necessary.
6.0 Written and Oral Submissions
6.1 Apart from advertisements placed in the media to solicit public submissions, the Committee wrote to a number of organisations and individuals specifically inviting them to make written or oral submissions.
6.2 The Sector Standing Committee subsequently received written and oral submissions on the Bill from the following:
Mr Frances Herman, General Manager - Fiji Broadcasting Corporation Ltd
Mr William Parkinson, Managing Director - Communications Fiji Limited
Mr. Mesake Nawari (Group Chief Executive Officer); Mr. Ken Clark (Chief Executive Officer MTV &General Manager Commercial Fiji TV); Mr. Isoa Kaloumaira (Director); Ms Tamarisi Digitaki (Head Of Corporate Affairs) and Ms Marigold Moody (Solicitor, Munro Leys) - Fiji Television Limited
Mr. Daryl Tarte (Chairman); Mr. Shalendra Singh (USP School of Journalism); Ms. Agatha Feriei (Public Member); Mr. Tony Yianni (Publisher Fiji Times) - Media Council (Fiji) Ltd
Mr Eremasi Tamanisau (Chairman) and Mr Timoci Qesanavatu (Director) - Fiji Performing Rights Association
Ms Asilika Uluilakeba and Ms Agatha Feriei - Fiji Media Watch
Ms Sharon Bhagwan Rolls (Co-ordinator), Ms Eta Rabuatoka, Ms Seema Chand, Ms Susan Chand; and Ms Fane Lomani - femLINKPACIFIC : Media Initiatives for Women
Mr Taniela Bolea (Chief Executive Officer) and Ms Barbara Malimali (Legal Counsel) - Fiji Audio Visual Commission
Mr Dildar Shah, Justice and Freedom Party
Mr Isiromi Bayameyame (Chief Executive Officer) and Mr Dausoko Kama - Yasana Holdings
Mr Graham Leung (President) and Mr Richard Naidu (Senior Partner, Munro Leys - Fiji Law Society
Dr Shaista Shameem (Director); Mr Nilesh Bilmoria (Senior Legal Officer Policy) and Ms Marama Tubuna (Senior Legal Officer Race Relations) - Fiji Human Rights Commission
Dr Arun Prasad Sharma (Acupuncturist/Taxi Operator)
Mr Tony Yianni (Publisher) Fiji Times Limited
Mr Russell Hunter (Acting Publisher) Sun (Fiji) News Limited
Mr Ken Clark (President) Pacific Islands News Association
Mr Toby Mendel (Law Programme Director) Article 19
Mr Max Underhill (Director) Maxumise (Fiji) Limited
Mr Samuela Rokocakau (Head of School of Electrical & Electrical Engineering) Fiji Institute of Technology
Pastor Emosi Toroca (Manager) World Harvest Broadcasting Network
Mr Ross Shaw (General Manager) Fosters Group Pacific Limited
Reverend Isireli Kacimaiwai Fiji Council of Churches
Mr Pramod Rae (General Secretary) National Federation Party
6.3 The Committee recognised the importance of the submissions received and therefore gave careful consideration to all.
6.4 Summaries of submissions were appended to the hard copy of this report as Annexure A, written submissions as Annexure B.
7.0 Observations, Deliberations and Recommendations
7.1 In its deliberations, the Sector Standing Committee took note of the salient features of the Bill as elaborated by the Honourable Minister for Information and Communications in the House of Representatives on Tuesday 8th August 2006, as well as the briefings and clarifications by officials of the Ministry and the First Parliamentary Counsel.
7.2 The Committee also notes that in principle the submittees agreed that there was need for regulations but at the same time noted that the need to change some aspects of the Bill.
7.3 Given the comments received and deliberations that ensued, the Committee subsequently made recommendations on each of the clauses in the Bill as well as outline issues which were of general concern. These are detailed from paragraph 7.4.
7.4 Clause 1: Short title and commencement
Background
7.4.1 This Clause provides for the short title and commencement provisions.
Submissions
7.4.2 No specific submissions were received for this clause.
Deliberations
7.4.3 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
Recommendations
7.4.4 The Committee recommends that Clause 1 stands as part of the Bill.
7.5 Clause 2: (Interpretation)
7.5.1 This Clause sets out definitions of expressions used in the Act.
7.5.2 The Fiji TV requested that the phrase public interest be defined.
7.5.3 The Parliamentary Counsel suggested that it was going to be difficult to come up with a definition for public interest. He mentioned that public interest in terms of certain types of material would be totally different from the normal preparation of material for public consumption.
7.5.4 The Committee recommends that Clause 2 be amended by deleting the word Ministry from the list of definitions.
7.6 Clause 3: (Objects of this Act)
7.6.1 This Clause articulates the objects of broadcasting regulation.
7.6.2 Communications Fiji Limited (CFL) was concerned with subsection (d) which covered the establishment of codes because the codes covering programming and advertising were already in place. These were established by the Fiji Media Council following the original Thomson Report and have been publicly reviewed several times since then. CFL maintains that it is inappropriate for a politically appointed body to sit in judgment over these issues and felt strongly that this area must remain in the hands of the Fiji Media Council to avoid abuse of media freedom.
7.6.3 Fiji TV submitted that this function is already being handled by the Fiji Media Council and Telecommunications Authority of Fiji.
7.6.4 Article 19 submitted that this section should be substantially revised so that it sets out overriding policy goals rather than just describe what the Bill does.
7.6.5 The Committee sought clarification and deliberated on issues raised by the submittees on this clause and was satisfied that the objects of this Bill were specifically on the Broadcast Licensing and related matters.
7.6.6 The existence of the programming and advertising codes in the Media Council is a self-regulating means for the media stakeholders which could be strengthened by the proposed Broadcast Licensing Authority to be set up. The Media Council, being a stakeholder will be part of the Licensing Authority.
7.6.7 The Committee considered the submission by CFL and other organisations) that there was a need for some regulation; hence it agreed that it was prudent that a regulatory framework be setup.
7.6.8 The Parliamentary Counsel clarified that the broadcasting policy in the Consultants report was not included in the Bill because the policies change from time to time.
7.6.9 The Committee agreed in principle that this Clause remains part of the Bill.
7.6.10 The Committee recommends that Clause 3 stands as part of the Bill.
7.7 Clause 4: (Establishment of the Authority)
7.7.1 Clause 4 establishes the Broadcast Licensing Authority.
7.7.2 Fiji TV submitted that this new body will create another bureaucracy under the civil service which will have members appointed through political affiliations. They also mentioned that there is no clear definition on what public interest is.
7.7.3 The Fiji Law Society submitted that the Governments record with statutory boards and appointments (particularly the smaller statutory authorities) as this Authority is bound to be, is not particularly good. There are many examples of delays in appointments, inadequate secretariat resources being provided and the slowness of decision-making processes because members do not attend meetings or are otherwise not committed to their work. There is no particular reason to believe the Authority would function any more efficiently than any other body appointed by Government. An important question to be raised is what its workload should be.
7.7.4 Fiji Broadcasting Corporation Limited (FBCL) submitted that the Authority must be an independent institution and its autonomy must be respected at all times. No person or entity shall seek to influence its members or its staff in the discharge of their duties, or to interfere with its activities, except in the discharge of a specific authority or duty provided for by law.
7.7.5 The Fiji Audio Visual Commission (FAVC) submitted that stakeholders such as Ministry of Information and Fiji Audio Visual Commission should be represented on the Authority to ensure that the lobby groups do not takeover the Authority. The Authority as proposed in the Bill appears to be ineffective and weak as one officer would be in charge of monitoring all local content compliances together with other requirements as stipulated in Clause 43. It would be difficult for a single person to scrutinize all the frequencies used by the broadcasters. This independent body should be adequately powerful in order to enforce the standards set and must be independent from people who would lobby to promote their own interests.
7.7.6 The National Federation Party (NFP) felt that the establishment of the Authority would render useless the right of the media to self-censorship and regulation. They mentioned that there is a Code of Ethics which journalists and programmers are expected to adhere to at all times. In instances where there have been breaches, those guilty of negligence have been disciplined and have even lost their jobs.
7.7.7 The Committee noted that there was a majority support amongst the submittees for the setting up of the licensing Authority but with divergent views regarding its operation.
7.7.8 The Committee concurred with the fears expressed by the submittees relating to the unilateral decision by the Minister to appoint all the members of the Board and strongly recommended that there should be a more transparent process.
7.7.9 The Committee was advised that the current situation warrants a change and the proposed Authority will provide a more transparent mechanism through the tender and non-tender processes proposed in the Bill.
7.7.10 On the issue of independence of the Authority, the Committee was satisfied that the Broadcast Licensing Authority proposed by the Bill will be independent, having membership representations from a very wide section of the community. The Committee agreed with FBCL and FAVCs submissions that the Authority must be an independent institution with powers to enforce appropriate standards.
7.7.11 The Committee was assured that the Bill does not aim to duplicate or remove the self-regulatory function of the Media Council through its provision. It should strengthen partnership with the issue of licensing and related matters proposed under the Bill.
7.7.12 The Committee agreed in principle that this Clause remains part of the Bill.
7.7.13 The Committee recommends that Clause 4 stands as part of the Bill.
7.8 Clause 5: (Appointment of members to the Authority)
7.8.1 This Clause authorises the appointment of members to the Authority.
7.8.2 The Media Council submitted that since the Minister has the power to appoint members of the Authority, there was a danger that he could make political appointments.
7.8.3 CFL believed that without sufficient safeguards, the power to influence the broadcast media would be abused by future governments. In particular, CFL would like section 5 (2) amended to include a requirement to consult with the Chairman of the Fiji Media Council over the appointment of Board members. This would guarantee some industry input ensuring that persons are properly qualified for this highly technical and very sensitive task.
7.8.4 Fiji TV submitted that there should be consultation with the Media Council regarding the appointments. It also noted that this exercise may become problematic because of the lack of people in the available pool that meet the criteria set out in the Bill and who have the knowledge and experience to deal with media issues impartially.
7.8.5 The Fiji Law Society submitted that more thought should be given to the process of appointing members of the Authority to ensure objectivity, integrity and balance, given that political issues may arise for it to manage. There should be an obligation on the Minister to consult both the Leader of the Opposition and the appropriate media representative organizations in making membership appointments, or even to accept their nominees.
7.8.6 The Fiji Human Rights Commission (FHRC) commends the membership of the Authority as it allows for a broad cross-section of the community as provided by sub-section (2); and an independent and impartial exercise of functions provided by sub-section (3). The Commission is concerned that the Bill is silent on making provision for physically disabled persons to be also eligible for membership to the Authority.
7.8.7 femLINKPACIFIC submitted that the process of appointing members to the Authority should provide for a broader sector of stakeholders to be involved and for the public (through representatives of key national civil society organizations) to also have an opportunity to comment on nominees. This would also ensure gender balance, based on relevant expertise as well as ensuring representation from the Fiji Disabled Peoples Association. The tenure of appointees should be fixed in the primary legislation and it should be quite clear that all members receive the same level of remuneration for the same activities.
7.8.8 Article 19 in its submission recommended the following:
(i) The minister should not have the power to make appointments on his or her own; the process should provide for others to be involved and for the public to have an opportunity to comment on nominees.
(ii) The members should appoint the secretary of the Authority.
(iii) The tenure of appointees should be fixed in the primary legislation.
(iv) It should be quite clear that all members receive the same level of remuneration for the same activities.
7.8.9 Fiji Broadcasting Corporation Limited submitted that members of the Authority must have some expertise, by virtue of their education or experience, in the areas of broadcasting, policy, law, technology, journalism and/or business and be of high moral standards, integrity, impartiality and competence. Furthermore, FBCL recommends that an Appointments Committee be established and they shall invite expressions of interest from competent members of the public to serve on the Authority. After making its selection, they would forward a shortlist of nominations to the Minister, who shall only appoint members from that shortlist. The list of all candidates on the shortlist prepared by that Appointments Committee shall be published and the public shall be given an opportunity to make representations concerning these candidates prior to appointment by the Minister. This ensures a transparent appointment process and the members shall be independent and impartial and not be aligned to any political interests.
7.8.10 The Fiji Institute of Technology in its submission stated that the Authority should have one member representing the education institutions to ensure that the educational policies of the Government are proactively supported.
7.8.11 The NFP stated that the appointment of members of the Authority either by the Minister or by Parliament is morally and ethically wrong as it is an imposition of political control. They suggested that the Fiji Media Council should be encouraged to enhance its independence, public credibility and effectiveness in dealing with complaints, as aggrieved persons have a right to seek legal redress for defamation, character assassination and frivolous conduct.
7.8.12 The Committee deliberated at length on the Ministers power in appointing members. The Parliamentary Counsel clarified that the Minister does not have a free-hand in appointing people to the Board, because Clause 5(2) states the matters that he must take into account when appointing members to this body that is integrity, impartiality and competence. He added that Clause 6(1) restricts the Minister from appointing whom he wants so it removes those who have interests in the industry from being involved in issuing licence and regulating the broadcasting service.
7.8.13 The Committee agrees with the concerns raised but differs strongly that the Fiji Media Council be the sole regulatory body due to their self-interest. The Committee feels that proper consultative procedures will be followed in the appointment of the members of the Authority.
7.8.14 The Committee strongly supports the possibility of the Fiji Media Council Members being appointed to the Authority.
7.8.15 The Committee noted that the concern generated on this particular clause was that there was no one over-sighting the Minister in his decision to appoint members. It was mentioned that the oversight could be with the relevant Sector Committee so that the Minister, after consulting the Sector Committee or with the concurrence of the Sector Committee, appoints members of the Authority.
7.8.16 On the question of independence, the Committee felt that there could never be independence because there are always vested interests therefore the Committee recommended that a change to that effect be made.
7.8.17 The Parliamentary Counsel agreed with the Committee and the necessary changes were made to the Clause.
7.8.18 The Committee recommends that Clause 5 be amended by adding the phrase in consultation with the Sector Standing Committee responsible for Administrative Services after the full stop in sub-clause (1).
7.9 Clause 6: (Disqualification of members)
7.9.1 This Clause specifies the various grounds of disqualification from membership of the Authority.
7.9.2 No specific submissions were received for this clause.
7.9.3 The Committee queried whether the period of two months was sufficient for a person to remain in the organization or whether it would entail the immediate suspension of a members interest. Parliamentary Counsel clarified that this provision will apply after the appointment of a member. If a member is caught under sub-clause (2) then the members have two options either dispose of the interest or resign; this must be done within 2 months. If not then clause 7(2) (a) will be used as the member will not be eligible for appointment.
7.9.4 The committee queried the reason for the non-inclusion of non-Fiji Citizens. Parliamentary Counsel clarified that the purpose of sub-clause (1) was to cut out the expatriate appointments, leaving room for local residents to be appointed. He further clarified that one can either be a citizen or a resident, and if one is a resident (after having worked and lived in the country for a certain number of years), he/she can be appointed to the Board.
7.9.5 The Committee agreed in principle that this Clause remains part of the Bill.
7.9.6 The Committee recommends that Clause 6 stands as part of the Bill.
7.10 Clause 7: (Tenure and removal)
7.10.1 This Clause comprises tenure, resignation and grounds for removal of Authority members.
7.10.2 The FHRC submitted that sub-clause (2) of the Bill has the effect of unfairly discriminating against persons with disability. This section is not in conformity with section 38(2) of the Constitution and section 18 of the Human Rights Commission Act.
7.10.3 The Fiji Broadcasting Corporation Limited mainly submitted in relation to sub-clause (2) that every attempt must be made to prevent the Minister from replacing or removing any member from the Authority unless any of the conditions set out is breached. In addition, any member removed must be given an opportunity to be heard and given the right to appeal in court against their removal.
7.10.4 The Committee sought clarification on the terms of appointment and was informed that the first term is for 5 years (first term can be for 1 year or five years). Re-appointment for a second and final term is also up to 5 years, which can be 1 year, or another 5 years but the Minister must appoint three members for a 2-year term. The intention is to retain some old members rather than bringing in a whole new Authority.
7.10.5 To address the concerns raised by FHRC, the Committee recognised that it is adequately covered under Fijis Constitution.
7.10.6 On the question of seeking redress, the Committee recognizes that everyone has a right for judicial review under the Constitution.
7.10.7 The Committee agreed in principle that this Clause remains part of the Bill.
7.10.8 The Committee recommends that Clause 7 stands as part of the Bill.
7.11 Clause 8: (Allowances for members)
7.11.1 This Clause states the allowances for the members of the Authority.
7.11.2 The Media Council noted that this clause gives the Minister, not the Authority, the power to determine the allowances
7.11.3 The Committee agrees with Fiji Media Councils submissions about the Ministers powers in determining the allowances.
7.11.4 The Committee discussed the various options how the allowance would be financed and was advised that the allowance would be determined by the Higher Salaries Commission, whilst operational matters would be handled by the Ministry. The necessary amendments were then made to this Clause.
7.11.5 The Committee recommends that Clause 8 be amended by deleting the word Minister and inserting the word Higher Salaries Commission in its place.
7.12 Clause 9: (Rules of procedure)
7.12.1 This Clause deals with Authority rules of procedure.
7.12.2 No specific submissions were received for this clause.
7.12.3 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.12.4 The Committee recommends that Clause 9 stands as part of the Bill.
7.13 Clause 10: (Authority may invite others to meetings)
7.13.1 This Clause allows non-member attendance by invitation at Authority meetings.
7.13.2 No specific submissions were received for this clause.
7.13.3 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.13.4 The Committee recommends that Clause 10 stands as part of the Bill.
7.14 Clause 11: (Disclosure of interest)
7.14.1 This Clause regulates disclosures of interest by members of the Authority or subcommittees.
7.14.2 No specific submissions were received for this clause.
7.14.3 The Committee queried why a person could not take part in any discussion or deliberation of the Authority if he can be counted for the purpose of forming a quorum. Parliamentary Counsel informed that a quorum is formed for the purpose of convening the meeting and the member will not take part in the matter in which he/she has an interest, and not other matters for consideration by the Authority.
7.14.4 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.14.5 The Committee recommends that Clause 11 stands as part of the Bill.
7.15 Clause 12: (Functions of the Authority)
7.15.1 This Clause details the functions of the Authority.
7.15.2 The Media Council submitted that sub-clause (5) gives the Minister enormous power over a free and independent media and that it goes so far as to provide that the Authority must comply with his directions.
7.15.3 The CFL also submitted that the Ministers almost unlimited powers to set conditions for licenses in the public interest is very dangerous and highly inappropriate and therefore requests the removal of this entire section as it makes the appointment of the Authority irrelevant.
7.15.4 Fiji TV submitted that governments do change and so do their policies hence this sub-clause 2(a) can be used by governments for their own political agendas. On sub-clause 2(b) Fiji TV notes that broadcasters must be encouraged to take part in setting standards and codes (e.g. New Zealand case). These codes already exist with Fiji Media Council. Regarding the Technical Code, Fiji TV believes that it will be developed by Telecom Authority of Fiji and will be a standard used by broadcasters, telecommunications companies and others that use the spectrum, therefore everyone will be subject to the same rules and regulations. Fiji TV further pointed out that sub-clause 5(a)&(b) gives the Minister widespread powers and control over the Authority hence the Minister would implement his/her decision.
7.15.5 With respect to sub-clause 5(a)&(b), Yasana Holdings submitted that this is a case of political influence under the guise of public interest. According to Yasana Holdings, it is vital that the interest of the public, the industry players and the stakeholders like us are involved in some way or another in the policy formulation and directions to protect us. The biggest worry for Yasana Holdings is its investment sustainability and control in Fiji TV.
7.15.6 In its submission, the Fiji Law Society questioned the effectiveness of the Authority in managing all of its functions.
7.15.7 The FHRC submitted that the Bill could expand its inclusion of Chapter 4 by highlighting specific provisions of it rather than just making mention of it. It also noted that such exercise of powers and for investigations raises a privacy and confidentiality issue and ought to be in conformity with section 37 of the Constitution. This Clause can be expanded so that it does not invade the privacy of every person. The Commission further submitted that the right to privacy has limitations prescribed by law - limitation applies only when this is reasonable and justifiable in a free and democratic society.
7.15.8 femLINKPACIFIC in its submission noted that the committee also consider the role of the Authority to empower community and rural level participation in the broadcast sector and consider ways in which the Authority will:
(i) enable local consultations with a diverse range of citizens and communities and not just capital city based submissions, especially marginalized groups in rural communities especially to make informed decisions on the broadcasting sector;
(ii) enable the establishment of Listeners/Advisory Groups as a way to effectively address audience viewpoints, concerns and submissions, especially with the view of considering programme development and complaints;
(iii) enable such advisory groups as well as support staff to be trained appropriately to understand the complexities of the broadcast sector.
7.15.9 With respect to sub-clause (5), femLINKPACIFIC recommended that the powers of the Minister in relation to licensing should be reviewed and it should be made clear that these are general powers, to be exercised in fulfillment of the Governments policy mandate and not to interfere with specific licensees or licensing processes. The powers of the Minister to regulate matters relating to licensing should be given to the Authority. At a minimum, the Minister should be required to consult with the Authority and affected stakeholders before adopting regulations.
7.15.10 Article 19 submitted that the powers of the Minister in relation to licensing should be reviewed and it should be made clear that these are general powers, to be exercised in fulfillment of the governments policy mandate and not to interfere with specific licensees or licensing processes. It further noted that the powers of the Minister to regulate matters relating to licensing should be given to the Authority. At a minimum, the Minister should be required to consult with the Authority and affected stakeholders before adopting regulations.
7.15.11 Fiji Broadcasting Corporation Limited submitted the following:
(i) Sub-clause (2): It opposes the requirement of the Authority to function in accordance with Government policy. This endangers the editorial independence of the broadcaster given that sub-clause (5) empowers the Ministers to give general or specific policy directions in the public interest to the Authority which the Authority is compelled to comply with.
(ii) Sub-clause (5): FBCL believes the Authority should have exclusive power in relation to its functions and must in no way be influenced by political agendas, including ministerial directions as proposed in this Clause under which the Minister is empowered to issue policy directions to the Authority.
7.15.12 The NFP stated that the Bill breaches Section 30 of the Constitution of the Fiji Islands as well as Article 19 of the Universal Declaration of Human Rights, which Fiji has ratified.
7.15.13 Regarding policy directions of the Minister, the Ministry clarified that it is usually the role of most statutory authorities to implement Government policies. However, if it specifically relates to matters that are in the public interest the Minister under sub-clause (5)(a), would then formulate those policies in sub-clause (5)(b). It then gives direction to the Authority to implement, as the Government policy-implementing agency.
7.15.14 The Committee noted a suggestion for the inclusion of a new Part 2 to provide for the broadcasting policy, as was provided for in the first draft Act proposed by the Consultants, to make sure that this particular regulation will uphold the Constitution and the freedom of rights as guaranteed under the Constitution. First Parliamentary Counsel clarified that once such a policy was placed in the legislation it could not be changed unless it was brought back to Government. He mentioned that the proposed broadcasting policy was about balancing Chapter 4 of the Constitution (Bill of Rights) and the public interest, and that these were adequately covered in Clause 12(1). The Committee therefore agreed that this clause satisfies the issues raised by the Fiji Human Rights Commission.
7.15.15 The Ministry informed the Committee about its Licensing policies. The Ministry clarified that the Authority would also have a role to play in formulating the licence policies.
7.15.16 Query was made on the Technical Code as mentioned in sub-clause 12(2)(c). The Ministry informed that the Technical Code deals with the technical aspects of broadcasting such as the issue and control of the electro-magnetic spectrum. The code ensures that technical standards relating to all aspects of transmission coverage are maintained accordingly.
7.15.17 The Committee recommends that Clause 12 be amended by:
(i) deleting the words Government policy in sub-clause 2(a) and substituting it with the words policies formulated under sub-section 5(a);
(ii) deleting the word broadcasting from the first line of sub-clause 5(a) and substituting it with the words broadcast licensing.
7.16 Clause 13: (Powers of the Authority)
7.16.1 Clause 13 states the extent of the Authoritys powers under the Act.
7.16.2 There were no specific submissions received for this clause
7.16.3 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.16.4 The Committee recommends that Clause 13 stands as part of the Bill.
7.17 Clause 14: (Investigations)
7.17.1 This Clause empowers the Authority to conduct necessary investigations and hearings.
7.17.2 Fiji TV submitted that the Fiji Media Council should carry out the investigations.
7.17.3 The Committee felt that if the Media Council had vested interest, they should be the last one to carry out any investigations because there would be a conflict of interest.
7.17.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.17.5 The Committee recommends that Clause 14 stands as part of the Bill.
7.18 Clause 15: (Committees)
7.18.1 This Clause enables committees to assist the Authority to be appointed.
7.18.2 There were no specific submissions received for this clause.
7.18.3 The Committee was informed that the committees would generally be ad hoc and technical/professional in nature and would be convened to provide appropriate research and advice to the Authority as and when it considers necessary. Parliamentary Counsel informed that the Authority may form committees, for example Committee on Technical Code, Programme Code or Compliance Committee. Experts and stakeholders may be appointed to the committee.
7.18.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.18.5 The Committee recommends that Clause 15 stands as part of the Bill.
7.19 Clause 16: (Secretary to the Authority)
7.19.1 This Clause relates to the appointment of a secretary to the Authority.
7.19.2 The Media Council submitted that since the Minister appoints a Secretary, this would further enhance his power over the Authority.
7.19.3 The CFL submitted that the appointment should be the function of an independent Authority.
7.19.4 Fiji TV submitted that the position of the secretary is unnecessary, as it will only enhance the Ministers powers over the Authority.
7.19.5 The Committee agrees with the submittees and sought clarification from the Parliamentary Counsel about the independence of the secretary/secretariat. Parliamentary Counsel advised that the powers and functions of the Authority is independent and they will decide who gets the license and they will only assist and oversee the development of the codes, not develop the codes because those involved in the industry will actually formulate and develop the codes. The role of the secretariat therefore will be administrative as everything will be covered by the Ministrys budget.
7.19.6 Parliamentary Counsel also clarified that the person to be appointed as Secretary will be a Principal level staff and his/her duties will include ensuring that the administrative work of the Authority is carried out. This would involve receiving complaints from the public to be directed to the Authority.
7.19.7 The Committee agreed in principle that this Clause remains as part of the Bill.
7.19.8 The Committee recommends that Clause 16 stands as part of the Bill.
7.20 Clause 17: (Exemption of liability)
7.20.1 This Clause consists of the liability limits of the Authority, its members, officers or employees.
7.20.2 Fiji TV submitted that a person should be liable for a decision hence it believes that if legislated, this Act will protect people within the Authority and they would be at liberty to do whatever they want.
7.20.3 The FHRC submitted that this section is too broad for interpretation as the Bill is silent on the source of the exercise of power or authority. This can be limited by identifying what actions amount to good faith in the exercise of the functions or duties in the Bill and this can be provided for in the interpretation section of the Bill. It also raises issues of depriving a person of personal liberty as provided by section 23 of the Constitution.
7.20.4 The Committee queried the nature of the acts mentioned in this clause. Parliamentary Counsel clarified that it is in relation to the exercise of the functions, power or duty. When any member is exercising any function, power or duty, he/she is protected and it gives him/her the independence to do things without thinking that they can be sued if they do not do something correctly, unless it is done in bad faith. The law will not tolerate that type of exercise of powers but ultimately, the State is responsible. Anyone who is aggrieved by the action of a person exercising a power under this Act can still sue the State, not the person.
7.20.5 The Committee agreed in principle that this Clause remains as part of the Bill.
7.20.6 The Committee recommends that Clause 17 stands as part of the Bill.
7.21 Clause 18: (Annual Report)
7.21.1 This Clause provides for the annual report requirements of the Authority.
7.21.2 Article 19 noted that more detail as to what should be included in the annual report should be provided in the Bill.
7.21.3 The Committee recognized the concern by Article 19 but noted that it was an administrative issue which would be dealt with by the Authority itself.
7.21.4 The Committee requested that a time limit be placed on the production of the annual report. The Ministry clarified that under the new FMIS requirement, all CEOs are required to submit their annual reports by 31st March or at the end of the first quarter.
7.21.5 The Committee agreed in principle that this Clause remains as part of the Bill.
7.21.6 The Committee recommends that Clause 18 stands as part of the Bill.
7.22 Clause 19: (Broadcast licence requirement)
7.22.1 This Clause prohibits the provision of a broadcasting service without a licence.
7.22.2 Fiji TV submitted that it would be difficult to control all broadcasting licences as there are other technologies, which can be used such as the Internet. Also, there is no mention of new media, which may join the industry in future.
7.22.3 The Committee notes the concerns raised by Fiji TV but it felt that the Authority would have to take up this issue in future.
7.22.4 The Committee queried the justification of having the amount stated in this clause. Parliamentary Counsel clarified that the figure has been put for two reasons. Firstly it accounts for both the small and large broadcasters. Secondly it takes into account the future (next 50 years) when this amount would lose its value; hence this is to avoid the legislation being brought to Parliament for frequent changes.
7.22.5 The Committee noted that the offence provisions are clearly stated in Clause 48.
7.22.6 The Committee recommends that Clause 19 be amended by deleting sub-clause (4).
7.23 Clause 20: (Existing broadcasting services)
7.23.1 This Clause validates existing broadcasting services, deeming them amended to comply with the Act.
7.23.2 Fiji TV submitted that this might affect its current court case with regards to frequency interference.
7.23.3 The Committee noted Fiji TVs submission but felt that the matter should be left to the courts.
7.23.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.23.5 The Committee recommends that Clause 20 stands as part of the Bill.
7.24 Clause 21: (New licence tenders)
7.24.1 This Clause gives details for new broadcasting service licence tendering.
7.24.2 Fiji TV submitted that those with a lot of money will win the tenders put up by the Authority. Eventually, the foreigners will use locals to gain access to the licenses hence there is a need for transparency at all stages. Fiji TV also stated that the issuing of license should be handled by the Ministry and not the Minister alone.
7.24.3 The Committee noted the concerns but believes the tender process will be transparent.
7.24.4 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.24.5 The Committee recommends that Clause 21 stands as part of the Bill.
7.25 Clause 22: (Non-tender licence applications)
7.25.1 Clause 22 extends the provision for licence applications to cover applications not called by tender.
7.25.2 Fiji TV submitted that all the processes mentioned in Clause 21 be included for this application.
7.25.3 The Committee sought clarification on the meaning of competitive tender because they felt that tenders may not be called for and it would be up to the Authority to consider the applications hence opening the way to corruption. Parliamentary Counsel clarified that broadcasting uses spectrum, which is a public resource. Clause 21 gives the Authority a duty to determine whether it is in the public interest to issue competitive tender (proactively selling a broadcasting service to the highest bidder). Otherwise, it can consider applications made by any person who wishes to provide broadcasting service to the public, provided that person complies with clause 21(4).
7.25.4 The Committee agreed in principle that this clause remains as part of the Bill.
7.25.5 The Committee recommends that Clause 22 stands as part of the Bill.
7.26 Clause 23: (Assessing licence applications)
7.26.1 This Clause describes how licensing applications are to be assessed.
7.26.2 The CFL submitted that sub-clause (3) be amended to read as follows:
The Authority shall (delete may) invite written comments in the prescribed manner on an application for a license and consider any comments when the Authority considers the application.
This amendment will make it a requirement that the views of the broadcasting industry are sought when new licence applications are being considered.
7.26.3 Fiji TV submitted that under sub-clause 4(a), another institution, not the Authority, should be given the responsibility for determining a license application. For 4(e), Fiji TV has stated that pushing public service broadcasting agenda onto commercial entities (such as Fiji TV) would be detrimental to the viability of their term. Fiji TV sought clarification on whether sub-clause 7 was inclusive of management or if it was restricted to management only.
7.26.4 Fiji Human Rights Commission commends that the application for licences to the Authority are to be assessed fairly and in a manner which is non-discriminatory and is transparent as provided in this Clause. The Commission also highlighted that the purpose of sub-clause (1) is defeated by sub-clause (7) which prohibits the issuing of license to a non-citizen or non-resident of Fiji.
7.26.5 FHRC understands that the objects of the Bill are clearly stated by Clause 3 of the Bill but queried that if an application for licence is received by the Authority (and such application is made by a non-citizen or non-resident of Fiji) and it demonstrates that it complies with the codes for broadcasting including advertising, programme and all other terms or conditions of a licence, how would such an application fit into sub-clause (1) of the Bill which focuses on fair, non-discriminatory and transparent assessment of licences.
7.26.6 In its submission, the FBCL opposed any attempts to link the licensing/renewal of broadcast licenses to issues that compromise the editorial independence of broadcasters. They mentioned that this was a real concern for media organizations because there was a real danger that if government and/or the Minister are unhappy about certain broadcast news/programmes, this could be used against them during renewal of licenses. As such, the process for assessing licenses must be fair, non-discriminatory and transparent. They further added that license applications should include consideration of the application by the Authority at a public hearing and written comments on the application should be mandatory.
7.26.7 The Committee felt that sub-clause (6) could tread on the rights of a person but was assured by the Parliamentary Counsel that no provision in the Constitution may be violated. He mentioned that the rationale is that the broadcasting service, if granted to a political party, may be used to disseminate propaganda, etc.
7.26.8 In view of sub-clause (7), the committee sought further clarification on the term incorporated and whether it referred to overseas companies established in Fiji or to local companies. Parliamentary Counsel clarified that an overseas company intending to be given a licence to broadcast in Fiji will be required to be incorporated in Fiji (e.g. subsidiary company) before any licence can be issued.
7.26.9 The Committee recommends that Clause 23 stands as part of the Bill.
7.27 Clause 24: (Allocation of frequency)
7.27.1 This Clause requires the Authority to predetermine the appropriate frequency for a licence.
7.27.2 Fiji TV submitted that the role stipulated under sub-clause (1) should be with Telecommunications Authority of Fiji.
7.27.3 The Committee took note of the concerns of Fiji TV but was advised that the frequencies referred to under this Clause are only for broadcast services and as such, the proper Authority is the one proposed in this Bill and not Telecommunications Authority of Fiji.
7.27.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.27.5 The Committee recommends that Clause 24 stands as part of the Bill.
7.28 Clause 25: (Licence renewals)
7.28.1 This Clause lays down the process for the Authority for renewing of licences.
7.28.2 Fiji TV submitted that this legislation should also state that the Ministry will not unreasonably renew application for licence as it may affect the investors who spend a lot for their investments. Fiji TV believes this clause is important for investors as it is short term in focus so there is no return to them.
7.28.3 The Committee noted the concerns of Fiji TV and believes that there is a proper tender process mechanism and as such, the Authority will not unreasonably renew applications for licences.
7.28.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.28.5 The Committee recommends that Clause 25 stands as part of the Bill.
7.29 Clause 26: (Terms of licences)
7.29.1 This Clause sets out the terms of licences.
7.29.2 Fiji TV submitted that twelve years was not long enough to realize a decent return to investment especially with the global move to digital. Shareholders will not invest unless they know they can get reasonable returns from their investment. At least 15 to 20 years in the television industry is sufficient for a significant return.
7.29.3 femLINKPACIFIC recommended that licence terms and conditions should be defined under the following categories: Public Service/National Broadcaster; Commercial Broadcaster; Community Broadcaster; and Religious Broadcast Channel. In this regard licences would then be consistent with the objectives of broadcast regulation and be designed to ensure that the characteristics of service as a specific broadcasting service are maintained for the duration of the licence. They also queried the terms of licence for community broadcasters and why there was a difference in the duration of licences as mentioned in section sub-clauses (2) and (3).
7.29.4 The Fiji Institute of Technology recommended that licences for community radio or TV broadcasting be issued for up to 3 years; that the license for commercial radio broadcast be 5 years; and license for commercial TV broadcasting be for 7 years. They believed that generally, the shortening of terms will ensure that effective control is maintained and that positive changes can be implemented much more quickly.
7.29.5 Maxumise (Fiji) Limited submitted that 12 years is a short period for a significant investment and could lead to short term investment thus minimising infrastructure. They also questioned whether this would take into account the established stations that invested in Fiji when terrestrial transmitters were the only means of distribution.
7.29.6 The Committee noted the concern by femLINKPACIFIC and mentioned that it is specifically covered in the interpretation [Clause (2)].
7.29.7 The Committee sought clarification on the difference in the number of years granted for radio and television broadcasting. The Ministry clarified that the duration of licences generally recognizes that TV is a higher and intensive capital/operational investment especially in its start-up phase and TV companies generally require a longer period to recoup their initial investment costs aside from focusing on trading profitably.
7.29.8 The Committee agreed in principle that this Clause remains as part of the Bill.
7.29.9 The Committee recommends that Clause 26 stands as part of the Bill.
7.30 Clause 27: (General licence conditions)
7.30.1 This Clause determines the general licence conditions including the term of years for different licences.
7.30.2 The CFL submitted that this section adds unnecessary regulation as paperwork and other regulatory measures are already present in the Bill.
7.30.3 Fiji TV submitted the following for the different sub clauses:
(i) Sub-clause (2) will have serious implications on Fiji TVs commercial viability.
(ii) Sub-clause (3) will be an expensive exercise for Fiji TV. It would cost Fiji TV at least $500,000/month to maintain SKY Pacific channels only. The Authority should carry out this cost alone. Broadcasters already pay licence fees and it would be unfair on them if asked for more.
7.30.4 Yasana Holdings submitted that in-built conditions should be put in place to allow and justify the transfer similar to conditions placed on new licenses, rather than leaving the statement open to the mercy of the Authority whose members are politically chosen. They felt that under sub-clauses (3)&(4) Fiji TV would pay an exorbitant cost of $650,000 per annum to meet this sub-clause in terms of storing master recordings of all its programs and advertisements for 28 days. These are operational costs in nature and will affect its dividend payment ability to Yasana Holdings, let alone the effect on the price and value of Fiji TV shares that is currently at $5.62 per share on the South Pacific Stock Exchange. The amount is just too high to accept, together with the possible reduction in share value. Every one cent reduction in value of Fiji TV shares, reduces the value to Yasana Holdings by $52,000, imagine the effect on reductions by ten cents to Yasana and Government.
7.30.5 Fiji Institute of Technology stated that a compulsory condition should include that announcers in all the major languages are to be certified on their proficiency in the language they use by a relevant educational institution, in order to ensure that the standard is maintained and positively developed further. In addition, to support multicultural sensitivity and to support the educational system and curricular. The broadcasting technicians are also to be certified as licensed broadcast technicians by FIT after completion of a relevant programme of study. This is to ensure that the best technical standard, safety and development are perpetuated.
7.30.6 Maxumise (Fiji) Limited submitted that the specification of Specific Licence Conditions to a licence may impact on the commercial viability of one station over another. They stated that the competition in a small economy such as Fiji will be driven by its attraction to larger media groups and therefore requires flexibility, not rigid controls.
7.30.7 The Committee noted the concerns raised by the submittees but the clause only provides for materials, which are subject for dispute, and not all materials. The Committee was advised that the new technological innovations should reduce the cost therefore the cost mentioned by the submittees may seem unrealistic.
7.30.8 The Committee sought clarification on the 28 days mentioned as it was felt that in case of a dispute, regardless of the time consumed in putting up a case, the records should always be readily available. The Committee was informed that the cost of retaining all programme copies is expensive and especially so for television. Copies of programmes in dispute can probably be stored for a much longer period.
7.30.9 The Committee strongly supports the importance of training for the people involved in the media fraternity.
7.30.10 The Committee agreed in principle that this Clause remains as part of the Bill.
7.30.11 The Committee recommends that Clause 27 stands as part of the Bill.
7.31 Clause 28: (Copyright)
7.31.1 This Clause applies specific broadcasting rights and copyright necessary for broadcast programmes.
7.31.2 In relation to sub-clause (2), the FBCL submitted that the requirements in this clause are too much to ask and it is an impossible task given that the bulk of FBCLs programmes are produced in-house with obvious back announcements of the presenter/producer. This current practice is sufficient and radio should not be required to read on air the same line of credits applicable to television. In relation to copyright, the FBCL believes the existing legislation is adequate but it must be enforced.
7.31.3 Fiji TV raised its concern about the way it would make its programs. For instance the experience with Noda Gauna whereby a mataqali may dispute giving rights to Fiji TV on certain stories.
7.31.4 The Fiji Audio Visual Commission noted that the copyright laws must be enforced to ensure that local artists are compensated for their production and can make a living out of it. They recommended that a sister Act to the Copyright Act 1999 be established to strengthen the existing law. FAVC also felt that the Copyright Act should be updated because it has no reference to the world of Internet, digital download, etc. A suggestion was made for a register to be kept in respect of all intellectual properties so that the original owner will have some recognition. They noted that the copyright issues were not taken very seriously.
7.31.5 The Fiji Performing Rights Association submitted that a necessary condition for the license application should include that the applicants undertake to ensure to the Authority that the provisions and requirements of the Fiji Copyright Act 1999 are fully complied with and should there be a breach this Copyright Act while in service, the license must then be invalidated. This is to ensure compliance with the Copyright Act and uphold the constitutional right of all citizens and to help curb the rampant practice of piracy of copyright works.
7.31.6 The Committee was concerned at how broadcasters would be able to comply with the copyright laws since it was not fully effective in the country. The Ministry responded that the Copyright Act is effectively observed by radio and television companies in Fiji as law-abiding corporate citizens. Breaches of copyright will however be monitored by the Authority as and when they do arise.
7.31.7 The committee also requested that the 1999 Copyright Act be mentioned in this clause so it is abided. The Parliamentary Counsel responded that by putting the Copyright Act means that only the rights that are recognized under the Copyright Act 1999 will be applied. This one seems to be general, because Fijis Copyright Act will only apply to Fiji those who are residents in Fiji. However it would not apply for materials brought from overseas. It will still need to comply with those rights and most of those are covered under treaties and conventions, not necessarily under the Copyright Act. The Parliamentary Counsel further emphasized that this clause be left as it is, otherwise it would encourage the broadcasters to play unauthorised materials just because the owners are not in Fiji; even though we have arrangements with other countries on the protection of those rights.
7.31.8 Parliamentary Counsel mentioned that the Fiji Performing Rights Association (FPRA) is the enforcing body for its members and sister associations overseas. Most broadcasters in Fiji have reached an arrangement with the FPRA on the issue. This will make the FPRAs work much easier.
7.31.9 The Committee agreed in principle that this Clause remains as part of the Bill.
7.31.10 The Committee recommends that Clause 28 stands as part of the Bill.
7.32 Clause 29: (Undue concentration of ownership)
7.32.1 This Clause is designed to prevent the undue concentration of ownership within the media industry.
7.32.2 The CFL submitted that a more general statement is needed in this section considering the diversity of media industry. The Authority should then be given the authority to propose to Cabinet appropriate policy, to be reviewed annually, on this issue following wide consultation with the public and industry. This would provide much greater flexibility and allow the industry to adjust quickly to changing technology, while ensuring that the general public is not denied access to the latest technologies and potential services.
7.32.3 Yasana Holding Limited submitted that sub-section (2) and (3) will affect their future business plans. Yasana Holdings aims to have some control in the radio sector, not only for financial gains but to have some control on the negative impact on society and culture. It will continue to be a responsible investor (as with Fiji TV) and assist the ministry to self control and self regulate the broadcasting. Restricting Yasana Holdings will mean restricting the majority of the people in Fiji to have a say in radio or newspaper sectors.
7.32.4 The Fiji Law Society believes that this clause raises a highly political question both in terms of ownership within a particular media (e.g. two newspapers or radio stations) and cross-media ownership. These are matters for the industry, taking account of Fijis conditions and international trends. They questioned whether there is a case to be made which allows for more concentrated ownership so long as strong boundaries are established with respect to editorial control.
7.32.5 femLINKPACIFIC submitted that this clause be amended and recommend that the Authority should be empowered to review these on a case-by-case basis given that community broadcasters may be able to cost effectively consider transmission of both audio and video programming.
7.32.6 The FBCL recommended that it should be allowed for financial survival of the media organizations and also to maintain the investor confidence.
7.32.7 Fiji TV in its submission noted that the government already restricts foreign ownership and now, it wants to restrict local ownership. This will give rise to restriction on Fijis overall development. It further questions what will happen to those that are already in this situation - will they be compensated by Government if they have to give up control of one company? Does the definition of direct and indirect control also include preference shares?
7.32.8 The Committee sought clarification on the restriction on cross media ownership in this clause. The Parliamentary Counsel noted that by allowing one broadcaster to have control over the radio and television would allow it to dictate what news is disseminated to the public.
7.32.9 The Ministry also sated that the rationale for this (no cross media ownership) is to encourage a diversity of views; different voices rather than allowing one dominant player to control what we watch on television, what we read in newspapers and listen to the radio. The rules are designed to encourage plurality and diversity through multi-ownership, rather than dominated by one medium.
7.32.10 On the issue of changing technology the Committee was advised that this can be changed in the near future when the need arises.
7.32.11 The Committee agreed in principle that this Clause remains as part of the Bill.
7.32.12 The Committee recommends that Clause 29 stands as part of the Bill.
7.33 Clause 30: (Local content requirements)
7.33.1 This Clause permits the Authority to determine minimum local content requirements to be included by a licensed broadcaster
7.33.2 Yasana Holdings submitted that the issue of the amount of local content is best left to the market to decide than to be dictated by the Authority. Related to this issue is the fact that local program costs are high, the quality and standard left much to be desired and it would take extra effort and time to raise the standard to the required level.
7.33.3 femLINKPACIFIC in its submission recommended that these be set with due consideration being given to the fact that the broadcast sector has flourished to-date as a result of structural adjustment policies which have caused our national broadcasters, in particular, to consider commercially viable programming, and that while we promote the need to support more local and independent programme content, such regulation should not in anyway contravene media freedom standards and guidelines.
7.33.4 Fiji TV in its submission noted that the clause should specify with whom this consultation should be done as the decision taken should also reflect the commercial viability of a program. Fiji TV further queries whether the government will subsidize the production of local content or it will be done by the organization involved.
7.33.5 The Fiji Performing Rights Association believes that the minimum local content should be 50% to promote local productions, boost employment and the economy.
7.33.6 FAVC submitted that the local content requirement should be extensively defined and that it should specify scripted drama. They felt that the percentage for local content requirement should be via consultation and it should be increased gradually. FAVC proposed the setting up of a film fund to support local artists and to help develop art in Fiji. This would ensure that local artists have access to their own funds and have an output on their creative productions.
7.33.7 The Committee noted the concerns raised by the submittees on their call for self-regulation on the local content, but strongly felt that there is a need to prioritise the local content requirement. It supported the submission by the FAVC that this can be achieved through consultation with the broadcasting industry and should increase gradually based on the market considerations and commercial viabilities.
7.33.8 During deliberations the committee sought clarification on what consulting widely meant in this clause. Parliamentary Counsel noted that it could be linked to Clause 38.
7.33.9 The Committee noted the need to recognise the creative talents of local artists in the music and film industry as highlighted by the Fiji Performing Rights Association but believes that this should be achieved gradually with market considerations.
7.33.10 The Committee recommends that Clause 30 be amended by deleting the words consulting widely at the end of the sentence and inserting the words consultation pursuant to Clause 38.
7.34 Clause 31: (Licence fees)
7.34.1 Clause 31 shows how the Authority is to determine licence fees.
7.34.2 The Media Council submitted that sub-clause (3) provides for licence fees to be paid into the Consolidated Fund therefore one could conclude that Government will meet all the costs so Parliament must approve the budget. In this case, the Authority could therefore become very political. They further submitted that there could be justification for the establishment of a body to control licensing.
7.34.3 The Fiji Law Society believes that this is a political issue and questions whether local content criteria can be regulated when there is no funding for local programming. They raised the question of whether the State was simply abdicating its responsibility for local programming by requiring the private sector to carry out this function.
7.34.4 femLINKPACIFIC submitted that this Bill take into account the non-profit nature of community broadcasters and exempt them from the payment of commercial operating fees, which is based on a profit system of commercial enterprises including public service broadcasters. The license fees collected should be managed in a special or consolidated fund, especially to support the independence of the Authority as well as public service broadcasting.
7.34.5 Article 19 submitted that the Bill should set out the manner in which the Authority will be funded, which should be designed in such a way to protect it against interference.
7.34.6 Fiji TV submitted that there is no definition of Consolidated Fund (sub-clause (3)) and recommends that the fees collected should be used to develop the broadcasting industry especially skills at every level.
7.34.7 In relation to sub-clause (1), Fiji Institute of Technology stated that the quantum of the License fee for educational purposes be reduced to $20 per month, equating to $240 per year. This is because advertising is not permitted for radio stations operated by educational institutions.
7.34.8 The Committee noted the concerns raised by the submittees.
7.34.9 The Committee was concerned that the phrase interested parties encompassed a wide cross-section. The Parliamentary Counsel clarified that it is restricted to those in the specific media industry.
7.34.10 The Committee sought clarification regarding the payment of fees in sub clause (3) and agreed that payment of licensing fees should be made by instalment through the year.
7.34.11 The Committee recommends that Clause 31 be amended by deleting all the words after Fund and substituting it with the wordsexcept that the licence fee may be paid by installment through the year.
7.35 Clause 32: (Additional terms and conditions)
7.35.1 This Clause elucidates the variety of additional licence terms and conditions which may be prescribed.
7.35.2 The Media Council submitted that this provision, along with clauses 34, 39 and 44, could have a significant impact on commercial broadcasting. Such control by the Authority over public companies, for example Fiji TV and Communications Fiji Limited that are listed on the South Pacific Stock Exchange could have serious consequences to shareholders.
7.35.3 Fiji TV submitted that it should be up to the broadcaster to commission who will produce it. There are not enough independent producers in Fiji to produce programs that are up to Fiji TVs program policies and standards. It takes time to produce programs. They mentioned that Fiji TV had successfully commissioned one programme (44 Magnum Productions) but even this was owned by foreigners, hence Fiji TV recommends that the government should provide incentives to broadcasters to commission programs from local independent producers.
7.35.4 After much discussion, the Committee recognised that this is an integral function of the proposed Authority; therefore it suggests this Clause remains part of the Bill.
7.35.5 The Committee recommends that Clause 32 stands as part of the Bill.
7.36 Clause 33: (Application to licensees)
7.36.1 This Clause spells out how changes to licence terms and conditions are to be applied.
7.36.2 No specific submissions were received for this clause.
7.36.3 Clarification was sought on the definition of the word retroactively in relation to this Clause. Parliamentary Counsel clarified that it meant that one cannot impose a condition that affects their previous operation and that any condition imposed, must be from today onwards.
7.36.4 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.36.5 The Committee recommends that Clause 33 stands as part of the Bill.
7.37 Clause 34: (Specific licence conditions)
7.37.1 This Clause lists some specific licence conditions for promoting broadcasting regulation objects.
7.37.2 Yasana Holding submitted that specific license conditions on programming hours, minimum local content above the minimum specified, amount of repeat programs and the specific language of the programs and the proportions, should also be left to the market, otherwise it will be detrimental to operations.
7.37.3 For sub-clause (2), Fiji TV specifically submitted the following:
(i) Air time is our inventory and this clause stipulates that we have to give it out for free.
(ii) What happens if it is costly? If there are no sponsors, might as well close shop! Local content needs to be run for at least 13 episodes to entice broadcasters like Fiji TV. We can then include it in one of our ratings period before we can convince advertisers to sponsor and we recover the costs.
(iii) This is an operational matter. Repeats are a global exercise and we cannot control what goes or passes through channels. Who will pay for the extra programs that will fill slots filled previously by repeats? Again, this is pushing a public service broadcast objective to commercial entities. Unfairly applies to TV only - what about radio?
7.37.4 The Fiji Audio Visual Commission noted that every broadcast media especially TV, must have a minimum standards requiring local programmes which, excludes advertising and talk back shows, to be aired at prime time. It further noted that local advertising should also be used to support local programming on the channel and should not be used to supplement overseas programmes that are already funded by pay channels. However, local programming should only be subsidized or funded by local advertising, as practiced in other countries. A policy should also be included that national sports only be shown on free-to-air TV, which is for the public benefit and as such would not exclude the poorer members of the community as it is part of national interest.
7.37.5 The World Harvest Broadcasting Network submitted that programme/service licences should ensure compliance with programme standards and grant permission for regular monitoring by an Ethics Standard Commission. They further submitted that carrier licences should prescribe transmission standards which should be technologically neutral.
7.37.6 After serious discussions and careful consideration over the issues raised in the submissions, the Committee is content that this is an issue that needs to be promoted and this particular Clause recognises it. Furthermore the Committee recognises the fact that Fiji is a multi-lingual country and thus it should not be conducted in one or two languages only.
7.37.7 The Committee agreed in principle that this Clause remains as part of the Bill.
7.37.8 The Committee recommends that Clause 34 stands as part of the Bill.
7.38 Clause 35: (Licence condition amendments)
7.38.1 This Clause controls the process for licence condition amendment.
7.38.2 No specific submissions were received for this clause.
7.38.3 The Committee noted that reasonable time was not specific to a time limit. The Parliamentary Counsel clarified that if it is a simple request, the Authority cannot sit with that for more than a month, because that would be unreasonable for the Authority to deal with. If it is a complicated condition, it may take the Authority six months to decide whether there should be an amendment to conditions, depending on different types of cases. After careful deliberation the Committee agreed that a 90 days requirement be included as part of the licence conditions.
7.38.4 The Committee recommends that Clause 35 be amended by inserting the words within 90 days between the words may and approve in the second line.
7.39 Clause 36: (General restriction on specific licence conditions)
7.39.1 This Clause limits special licence conditions to furthering the objects of broadcasting regulation.
7.39.2 No specific submissions were received for this clause.
7.39.3 The Parliamentary Counsel suggested some editorial changes to which the Committee agreed to.
7.39.4 The Committee recommends that Clause 36 be amended by deleting the words given the licensee after the word realistic in paragraph (c).
7.40 Clause 37: (Broadcasting frequencies)
7.40.1 This Clause contains the requirements for a Broadcasting Frequency Plan.
7.40.2 The Media Council submitted that this clause gives the Ministry, not the Minister, certain powers over frequency planning. They also mentioned that this introduces a bureaucratic element into the management of broadcasting.
7.40.3 femLINKPACIFIC submitted that consideration should be given to allocating the responsibility to develop the Broadcasting Frequency Plan to the broadcast regulator, taking into account its expertise in this area and the fact that it is responsible for putting the plan into operation, and that this must be in compliance with international standards set up by the International Telecommunications Union (ITU). Taking into account the growing proliferation of commercial and non-local programme content, they urged that due consideration be given to ensuring sufficient spectrum is available for educational, humanitarian and other non-commercial, especially public service and community broadcasting. This could include the establishment of Public Access Channels especially for non-commercial public use. Broadcast law should ensure the regulator is able to insist on the inclusion of public access channels as a condition of licensing a cable or satellite operator.
7.40.4 Article 19 believes that consideration should be given to allocating the responsibility to develop the Broadcasting Frequency Plan to the Authority, instead of the Minister.
7.40.5 The FBCL welcomes the development of Broadcast Frequency Planning and recommends that the key stakeholders must be consulted by the Authority in order to adequately update the industry on which part of the electromagnetic wave spectrum will be assigned to be used for broadcasting uses. FBCLs own consultancy report in this area shows that there is a lack of spectrum planning standards in Fiji and implies that there is an urgent need for improvements in this area.
7.40.6 Fiji TV noted that the role will be undertaken by the Telecommunications Authority and recommends that the Ministry should not get involved in this process.
7.40.7 The Fiji Audio Visual Commission submitted that the public frequency which is used by the companies is actually a public property and has to be for public benefit. As such, there has to be certain requirements that must be implemented for the companies to use. The public has the right to demand certain deliverables from companies that use these frequencies including local content in programmes and advertising.
7.40.8 Fiji Institute of Technology stated that the Broadcast Frequency Planning is to reserve certain Frequency Bands specifically for educational purposes in all frequency ranges including AM and FM. This is particularly important for the purposes of projects and research, which are major potential revenue earners for Fiji.
7.40.9 Query was raised on the number of stations a broadcasting station can accommodate within its broadcasting frequency spectrum. The Committee noted that there was an overloading of frequencies, which caused very low reception in the outer islands and other areas. The Ministry explained that the frequency spectrum is considered a finite national resource. It will be the function of the Authority to efficiently manage and allocate frequencies to licensees, both existing and new. Low reception of broadcasting signals is due to the transmission problems/gaps of existing radio operators. The Authority will ensure that licensees provide transmission coverage according to the terms and conditions stipulated in their licences.
7.40.10 The Committee also noted that this Clause gives more power to the bureaucracy than the Minister over the frequency planning. After deliberations with the Parliamentary Counsel it was agreed that in order to be consistent, the word Ministry should be replaced by the word Authority, hence changing the powers respectively.
7.40.11 The Committee recommends that Clause 37 be amended by deleting the word Ministry in the first line of sub-clauses (1) and (2) and replacing it with the word Authority.
7.41 Clause 38: (Advertising and Programme Codes)
7.41.1 This Clause instigates Authority development of an Advertising Code and a Programming Code.
7.41.2 The Fiji Law Society submitted that the legislation should not require the Authority to draw up and implement Advertising and Programme Codes but it should simply empower the Authority to do so, if the Authority is satisfied that media self-regulation is not effective.
7.41.3 The FBCL suggested that the Authority should adopt the Fiji Media Council guidelines on advertising standards, which is followed by its members and it sees no reason for the invention of new guidelines.
7.41.4 Fiji TV noted that the two codes are already in place and it is based on Fiji Media Council. The Technical Code is to be handled by the Telecommunications Authority.
7.41.5 Fosters Group Pacific Limited submitted that they were currently preparing an Alcohol Beverages Advertising Code for their company to adhere to, to ensure the responsible advertising and marketing of its beverages in Fiji. They expressed their interest in being included in any future consultation with regard to the review of the Advertising Code for broadcasters and would welcome the opportunity to contribute to this Code.
7.41.6 Fiji Council of Churches (FCC) in its submission raised its concerns on the impact of some of the programs that are being aired and viewed on the family, the communities and in particular the children which are supported by the various reports and studies which have been undertaken by concerned organizations in countries that have experienced the impacts of these programs.
7.41.7 The Committee sought clarification on the powers of the Authority in drawing and implementing Advertising and Programme Codes. The Parliamentary Counsel clarified that this clause referred to the function of the Authority; not the power. He mentioned that there was a difference between power and function, and that a function was like an operational or duty statement which one must carry out. The preparation of codes is different from making regulations because regulations will attract sanctions. The preparation of codes is only part of the conditions of the license. The Authority can be given the duty to prepare the codes in consultation with the media industry.
7.41.8 The Committee queried the function of the Media Council in relation to the enforcement of the said Codes. Parliamentary Counsel mentioned that some members of the Media Council could become members of the Authority, especially the Chairman, in view of his/her wide experience in the media industry.
7.41.9 The Committee recommends that Clause 38 stands as part of the Bill.
7.42 Clause 39: (Advertising Code)
7.42.1 This Clause amplifies the necessary content for the Advertising Code.
7.42.2 The CFL submitted that there is a danger in putting specific instructions in the Bill. Above all, these codes are covered in the Fiji Media Councils codes.
7.42.3 According to Yasana Holdings, the Advertising Code is of utmost interest to Fiji TV and Yasana Holdings. Clause 39(e) which restricts advertising to 20% of the daily programming is tantamount to removing a persons hand. Fiji TV stands to lose $2.5million per annum if the proposal is endorsed, which does not include the expected share price reduction on the stock exchange that will affect both Government and Yasana Holdings. This is quite a substantial amount; Yasana Holdings and its shareholders would then find itself in a daunting situation from the trickle down effect of the loss and also on the value of their investment.
7.42.4 Fiji TV submitted that sub-clause (1)(d) would effectively eliminate one of its major sponsors and will adversely affect Fiji TVs ability to bring overseas and local rugby to Fiji One. For sub-clause (1)(e), Fiji TV submitted that the government already controls their rate card (price) and now it wants to control what it can sell. This is not right as high-rating overseas programmes have more than 20% advertising slots as producers know that broadcasters need to sell more to cover costs. Fiji TV has no influence over this and as soon as this Bill is legislated, Fiji TV expects its share price to plummet. This will affect the owners of the business which according to Fiji TV, is not being seriously considered by Government. For sub-clause (3), it believes that the government already controls the price and it now wants to control what they sell and also control sponsorship. Fiji TV cannot survive financially under these restrictions.
7.42.5 Fosters Group Pacific Limited submitted that they are committed to responsible marketing and advertising of their products. They stated that in order to ensure a consistently viable and ongoing business in Fiji, the opportunity to market and advertise their products and sponsorship activities across a range of media, including broadcast, was vital.
7.42.6 The Committee noted that in most cases where a programme is being sponsored by a certain company, there was a tendency for that programme to be full of the companys own advertisements. The Ministry clarified that the Advertising Code may also set rules regarding programme sponsorship.
7.42.7 The Committee suggested that these rules will need to be developed by the Broadcast Licensing Authority in consultation with the Media Council and other key stakeholders, and should strike a balance between commercial demand and public/viewer interest to prevent saturation, intrusion, etc.
7.42.8 The Committee also raised the concerns raised by the Media organizations about the stated content (20%) of advertising in the daily programs. The Parliamentary Counsel suggested that the Parliament should not regulate on this but it should be left to for the industry to decide and thus suggested that amendment be made to this Clause. The Committee agreed to this suggestion and the necessary change was made.
7.42.9 The Committee recommends that Clause 39 be amended by deleting the figure 20% from sub-clause (1)(e) and replacing it with the words a specified percentage.
7.43 Clause 40: (Programme Code)
7.43.1 This Clause addresses the content of the Programme Code.
7.43.2 The CFL submitted that all the provisions listed in this clause are already covered in great detail by the Fiji Media Council codes which were developed after much public consultation over a number of years. CFL is concerned about the specific reference to balance and impartiality of news. CFL acknowledges its importance but still believes it is inappropriate for a politically appointed body to sit in judgment over this issue.
7.43.3 The FHRC in its submission commended the consideration of issues such as religion, gender, minorities, minors and disadvantaged groups in programming as provided by this Clause. It also amplifies programming codes to cover a pluralist democratic society as provided in sub-clause (2). However, the Commission submitted that the Committee should ensure the effectiveness of section 40 of the Bill as a violation of any of these provisions could give rise to claims for investigation by the FHRC as provided by section 7(1)(j) of the HRC Act or an application to the High Court for constitutional redress provided by section 41(1) of the Constitution
7.43.4 The Fiji TV noted that Fiji Media Council code already covers this thoroughly.
7.43.5 The Fiji Performing Rights Association submitted that a code of conduct be established as a deterrent for broadcasters to ensure that family moral values are promoted mainly because of a lack of sense of responsibility on the part of announcers and programmers, which impacts directly on the declining moral standards amongst the population, in particular the youths.
7.43.6 The Committee sought clarification on sub-clause (1)(e) and was informed that the sub-clause ensures that the content of programmes (and with specific reference to news and current affairs programmes) are not obtained through the use of covert recording or other devices and subterfuge.
7.43.7 The Committee also queried what the phrase the use of covert recording or other devices and subterfuge meant. The Parliamentary Counsel explained that these are secret recordings that may amount to criminal offences such as the use of bugging devices, etc., which is a criminal offence.
7.43.8 The Committee notes the concerns raised by the submittees and was assured that the Programme Codes could be developed by the Authority in consultation with key stakeholders who are already represented in the Authority itself. The Committee hopes for the development of a much stronger partnership between the key stakeholder groups and the Authority in the further development of Programme Codes.
7.43.9 The Committee agreed in principle that this Clause remains as part of the Bill.
7.43.10 The Committee recommends that Clause 40 stands as part of the Bill.
7.44 Clause 41: (Technical Code)
7.44.1 This Clause explains the Technical Code to be drawn up by the Ministry.
7.44.2 The Media Council submitted that this clause also gives the Ministry powers over the technical code which could also introduce a bureaucratic element to the administration.
7.44.3 femLINKPACIFIC in its submission recommended a further review and expansion of this section, as the draft in its present form does not take into account the low-powered and unique features of community broadcasting, such as the equipment used (suitcase radio), as well as the potential for new, appropriate and accessible ICTs to be incorporated as a means to reaching rural and remote communities.
7.44.4 The FBCL submitted that wider consultation between the Ministry and broadcasters is envisaged to draw up, review and amend the Technical Code for broadcasters. This Technical Code should address a range of issues relating to general technical broadcast standards and formats and should be published.
7.44.5 Fiji TV submitted that the Telecommunications Authority should deal with Technical Codes and if controlled by bureaucrats, it will have an adverse impact on investment.
7.44.6 The Committee agrees with the concerns raised in the submissions above and suggested that the word Ministry be replaced by the word Authority in sub-clauses (1) and (4); hence the necessary changes were made in the Clause. The Committee also made some more changes to sub-clause (4).
7.44.7 The Committee recommends that Clause 41 be amended by:
(i) deleting the word Ministry in the first line of sub-clauses (1) and (4);
(ii) inserting a full-stop after the word Code in the second line and deleting the words and, for purposes of implementation shall inform the Authority of any breaches it observes.
7.45 Clause 42: (Compliance)
7.45.1 This Clause reinforces that compliance with the 3 Codes is a licence condition.
7.45.2 The Fiji TV noted that compliance to the 3 Codes should not be part of license conditions. The Technical Code should be regulated by Telecommunications Authority and the Fiji Media Council should monitor advertising and program content using its current Code of Ethics and Conduct.
7.45.3 The Committee felt that it was not prudent to allow the Fiji Media Council to regulate the advertising and programme content through its own Code of Ethics and Practice because of conflict of interest. This must be done in consultation with the proposed licensing Authority.
7.45.4 On the concern by Fiji TV that the Technical Codes be regulated by Telecommunications Fiji, the Committee disagreed in view of the fact that this specifically relates only to the broadcasting industry which the Broadcast Licensing Authority is the proper authority.
7.45.5 The Committee also recognizes the need to update all existing Advertising, Programme and Technical Codes and made special amendments to that effect.
7.45.6 The Committee recommends that Clause 42 be amended by adding a new sub-clause (2) which would read as follows:
Any Advertising, Programme or Technical Code that exists at the commencement of this Act is deemed to have been made under this Part.
7.46 Clause 43: (Monitoring of licences)
7.46.1 This Clause expresses the Authoritys monitoring responsibility in relation to licences.
7.46.2 No specific submissions were received for this clause.
7.46.3 The Parliamentary Counsel justified that the reason for a three member(s) Complaints Committee was for administrative efficiency.
7.46.4 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.46.5 The Committee recommends that Clause 43 stands as part of the Bill.
7.47 Clause 44: (Directions by the Authority)
7.47.1 This Clause gives the Authority power to issue written directions to a licensee.
7.47.2 Yasana Holdings submitted that this provision is disturbing as it provides no grounds for the licensee to appeal.
7.47.3 The Committee noted the concern raised by Yasana Holdings but felt that following the principle of natural justice, it can seek judicial review at any time.
7.47.4 The Committee agreed in principle that this Clause remains as part of the Bill.
7.47.5 The Committee recommends that Clause 44 stands as part of the Bill.
7.48 Clause 45: (Complaints Committee)
7.48.1 Clause 45 sets up the Complaints Committee.
7.48.2 The CFL does not have any problems with the procedures outlined but wants the complaints to be dealt within a timely fashion.
7.48.3 femLINKPACIFIC submitted that the members of this Committee should be:
(i) independent and respected members of the broad cross-section of Fiji;
(ii) able to undertake public consultations
(iii_ able to mediate between broadcasters and aggrieved parties; and
(iv) a public process and that broadcasters be required to publish in their annual reports the nature of complaints received and the outcomes of the complaints procedure.
7.48.4 The FBCL noted that the importance of an independent and impartial complaints mechanism is not disregarded, but is concerned with the strong possibility that the proposed process (Clauses 45-47) can thwart the editorial independence and vibrancy of the media in carrying out its functions.
7.48.5 Fiji TV in its submission stated that the set up of a Complaints Committee will be a repetition of the Fiji Media Council and it also defeats at arms length the purpose of the Authority.
7.48.6 The Committee noted that the Complaints Committee will be set up by the Authority to look into issues relating to broadcast licensing and not confined to media issues as is currently dealt with by the Media Council Complaints Committee. In order to compel the Authority to set up the Complaints Committee, the Committee recommends that the word must be added in sub-clause (1). The Committee therefore made the necessary change.
7.48.7 Upon inquiry about the allowances to be paid to the Committee, the Ministry informed that the allowance would be payable in accordance with the existing rates and it was confirmed that the Committee will only consist of the members of the Authority, thus Clause 8 will cover the allowances.
7.48.8 The Committee felt that any form of disciplinary matter should be inclusive of the Bill and the Authority should determine the procedures so that there is full compliance with the rule of law, not the Committee. Parliamentary Counsel informed that clause 46 covers the more important procedures that are normally made by way of regulations and that this clause deals with minor procedural matters only.
7.48.9 The Committee recommends that Clause 45(1) be amended by deleting the word to in the first line and replacing it with the words and must.
7.49 Clause 46: (Consideration of complaints by Committee)
7.49.1 This Clause describes how complaints are to be considered by the Committee.
7.49.2 The Media Council felt that this provision would undermine the authority of the Complaints Committee since they must consult with the Ministry.
7.49.3 The Fiji TV submitted that the ccomplaints regarding Technical Code should be referred to the Telecommunications Authority
7.49.4 The Committee felt that the Authority should not be the one to decide on whether a complaint is trivial or frivolous because it may seem that way to the Authority but not to the complainant. Parliamentary Counsel informed that it was a matter of policy that the screening of complaints will be made by the full members of the Authority before it is referred to the Committee.
7.49.5 The Committee also queried the avenues which a complainant could take if his/her complaint was not satisfactorily heard by the Complaints Committee. The Parliamentary Counsel advised that the complainant could go for judicial review through the Courts.
7.49.6 The Committee recommended that sub-clause (4) should be deleted because it is an operational matter of the Ministry.
7.49.7 The Committee recommends that Clause 46 be amended by deleting sub clause (4).
7.50 Clause 47: (Sanctions)
7.50.1 This Clause formulates sanctions, which may be imposed by the Complaints Committee.
7.50.2 The CFL submitted that the sanctions proposed for breach of license conditions are excessive.
7.50.3 The Fiji Law Society submitted that the penalty provisions set out in the Bill are excessive and arbitrary and not well thought out. The Authority should not have the power to impose penalties of this magnitude.
7.50.4 The Society further submitted that the courts are influenced by the maximum tariff in deciding their policy on first offences, etc. There may be some offences which justify fines of this magnitude, but the drafters appear to have simply put in a blanket $500,000 number without applying itself in a proportional way to the specific (mis)conduct and the specific punishment. Therefore it is quite inappropriate for the Authority to be imposing significant financial penalties of this amount as financial penalties should only be imposed by a court after consideration of all the relevant issues.
7.50.5 Article 19 noted that the sanctions regime should be amended to ensure that sanctions are applied in a graduated fashion, and are proportionate to the wrong done. It further noted that the Bill should provide for a right of appeal from any sanction imposed.
7.50.6 The FBCL submitted that the exorbitant fine imposed along with other sanctions outlined in the Bill will deter broadcasters from pursuing controversial programmes and news stories. With regards to sub-clause (5), the FBCL noted that complaints about the content of programmes on radio and television must first be made to the broadcasters concerned. If a station fails to answer a written complaint within 60days, or the response is considered unsatisfactory, a person can complain direct to the Authority.
7.50.7 Fiji TV submitted that for sub-clause (2), it believes that public apology by broadcaster is enough. Paying a fine is more like a money making scheme. For sub-clause (5), it noted that 28 days is too long as it makes the Complaints Committee ineffective. It further notes that its complaints process is much more efficient. For sub-clauses (7) and (8), it noted that the right of appeal was not mentioned.
7.50.8 The Committee queried whether sub-clause (3)(a) should also include a term of imprisonment as it was felt that the penalty imposed was too open and a ceiling should be placed on the financial penalty. Parliamentary Counsel confirmed that this was an administrative penalty and recoverable as a debt under sub-clause (8). The Committee was also informed that sub-clauses (2), (3) and (4) are more serious breaches and attract serious sanctions.
7.50.9 The Committee also queried who will order the licensee to pay the fines the Authority or the Courts. The Parliamentary Counsel advised that this was an administrative penalty which was not the same as a fine. Parliamentary Counsel further clarified that there are two different ways in which the Authority can deal with the breach they could either complain to the Police about an offence being committed (which means it will go to the court system) or it can be handled within the Authority.
7.50.10 Based on the severity of the offence, the Committee also suggested that both the penalties - $500,000 fine and revoking the licence, should be applicable to the offending licencee and the necessary amendments were made.
7.50.11 The Committee recommends that Clause 47 be amended by inserting the word or after the word licensee in sub-clause (3)(b).
7.51 Clause 48: (Offences)
7.51.1 This Clause creates an offence under the Act.
7.51.2 The FHRC recommended that sub-clause (2) could be re-drafted to make it an option for the Court to consider possible Orders that can be made, when the Court is satisfied on the balance of probabilities that a breach of the terms and conditions of the licence has occurred.
7.51.3 The Committee queried whether there was any form of bondage between the government and the company apart from the seizure and forfeiture of equipment. Parliamentary Counsel confirmed that sub-clause (2)(a) was an injunctive order to stop the repeat of a breach.
7.51.4 The Committee also deliberated at length on the amount of fine ($500,000) for an offence by the licencee. The Parliamentary Counsel emphasised the points outlined in the earlier clauses and suggested an amendment to which the Committee agreed.
7.51.5 The Committee recommends that Clause 48 be amended by inserting the words or to a term of imprisonment not exceeding 2 yearsin sub-clause (1), after the amount of $500,000
7.52 Clause 49: (Regulations)
7.52.1 This Clause has the purpose of allowing the Authority to make regulations for the Act.
7.52.2 The Media Council mentioned that this clause gives the Minister power to make regulations on many matters including the imposition of sanctions. There is no provision for him to consult the Authority before making these regulations and further undermines the Authority by giving absolute power to the Minister.
7.52.3 In its submission, the FBCL suggested that the power to regulate be vested in the Authority and not the Minister, who shall only be empowered to make regulation to give effect to the appointment of the Appointments Committee; publication of the shortlist of nominations for membership of the Authority; and compensation of Members for actual expenses. This retains and safeguards the autonomy of the Authority.
7.52.4 The Committee agreed with the concerns raised in the submissions and deliberated on the role of the Authority and the Ministry in respect of making the necessary regulations, and recommended changes to that effect.
7.52.5 The Committee recommends that Clause 49 be amended by inserting the words on the recommendation of the Authority between the words may and make in the first line.
7.53 Clause 50: (Repeals, savings and transitional)
7.53.1 This Clause repeals the Broadcasting Commission Act (Cap. 105) and the Television Decree 1992 and other savings and transitional provisions.
7.53.2 No specific submissions were received for this clause.
7.53.3 The Committee was generally satisfied with the provisions in this Clause and agreed in principle that it remains as part of the Bill.
7.53.4 The Committee recommends that Clause 50 stands as part of the Bill.
8.0 General Comments
This Section covers issues that are general in nature and are of significant importance raised by submissions and considered by the Committee.
8.1 Need to Regulate
8.1.1 During the course of deliberations, the Committee discovered that almost all the submittes agreed in principle that there should be some form of regulation(s) in the media industry. This in the Committees perception provided the justification and the basis for the existence of this Bill.
8.2 Consultation Process
8.2.1 The Committee noted from the submissions received that there was very limited consultation with the stakeholders before the Minister introduced the Bill in the House of Representatives. Upon inquiry with the Ministry of Information and Communications, the Committee was informed that prior to the tabling of the Bill, all the major stakeholders were invited by the Ministry for a very brief power-point presentation on what the proposed Bill was about. However, the Ministry could not provide stakeholders with copies of the draft Bill at the time as it was still with the legal draftsman. The stakeholders were informed that since there was little time for wider consultation, they should present their views to the relevant Sector Standing Committee.
8.2.2 The Bill was eventually committed to the Sector Standing Committee on Administrative Services which called for written and oral submissions on the Bill. In view of the short time-frame given to consider the Bill, the Committee was not able to hold public consultations in the other major centres around the country, but was satisfied with the submissions received from the major stakeholders and other interested organisations and individuals.
8.2.3 The Committee strongly urges that all necessary consultations on the policy framework and strategic direction taken in any legislation must be undertaken prior to, and during the formulation stages of any Bill before it is tabled in Parliament. This will ensure that the views, concerns and support of stakeholders are obtained and necessary adjustments are made to the Bill to ensure its effectiveness. Often-times, it has been the Committee which has had to retrace this consultation step in order to solicit these views. This has, in the past, involved a lot of time and expenses on the part of the Legislature to ensure that the legislations are meaningful and that the public at large are both aware and conversant with Bills and their implications.
8.3 Ministerial Powers
8.3.1 The Committee received a common submission from the media organisations about the excessive powers of the Minister in appointing members to the Authority, preparing specific codes and issuing licences. The Committee considered this aspect seriously and sought clarification from the Ministry. Parliamentary Counsel informed that the Bill has particular clauses, which restricts the Ministers powers to certain limits. The Committee was satisfied with the explanations but also went ahead and put in more recommendations so that the Ministers role in these important procedures was as transparent as possible.
8.4 Article 19
8.4.1 The Committee noted the strong submissions from the media organisations and interested stakeholders for the implementation of the recommendations proposed by Article 19. The Committee was informed that two consultants, namely Mr Toby Mendel and Mr Thomson had been invited by the Ministry in 2003 to undertake consultations in view of the broadcasting industry, which lead to the formation of a draft Act of 2005. A number of submittees mentioned that the provisions in the former draft Act proposed by the consultants should be implemented. They further noted that a number of the relevant provisions relating to the broadcast industry had been deleted and replaced with the current Bill under consideration.
8.4.2 A few of the submittees informed the Committee that they were happy with the Bill as it were but there was a need for serious amendments to some of the clauses especially in view of the excessive powers that would be installed upon the Minister responsible and the formulation of the Programme, Advertising and Technical Codes.
8.5 Media Council
8.5.1 The Committee was briefed on the role and function of the Media Council and was informed that it was established 10 years ago as a means of dealing with complaints against the media. Its objectives as set out in its constitution are to:
(a) promote high journalistic standards to enhance the medias image;
(b) safeguard its independence;
(c) uphold the publics right to be informed accurately and fairly;
(d) operate a Complaints Committee; and
(d) promote a Code of Ethics and Practice.
8.5.2 The Committee was informed that the Media Council had its own Code of Ethics and Practice which was used by most media outlets and voluntary broadcast organisations, as a guideline hence there was no need for the implementation of new Codes.
8.5.3 The Committee was also questioned on the need for the establishment of a new Authority when the Media Council was already in place.
8.6 Local Talent
8.6.1 The Committee has recognized that there is a lot of talent in this country, which needs to be nurtured, and it looks upon the Government and the media industry to promote this. The Committee believes that the promotion of local talents would create employment for our youths, preserve our cultures and traditions and also promote Fiji abroad. The Committee strongly recommends that more efforts should be put it place to make this vision a reality.
8.7 Media Programmes
8.7.1 During deliberations, the Committee noted that there was a need to control what was disseminated to the general public in the form of entertainment both on television and on radio. The Committee was concerned that some of the programmes currently broadcast over these two medium is inappropriate, despicable and detrimental to our society's values. It has a lot of impact on our future generation. The Committee feels that stringent codes should be put in place so that there is a control over these programmes.
9.0 Summarised List of Substantive Recommendations
9.1 Listed below are the substantive recommendations made by the Committee on the Clauses and Schedules in the Bill:
9.1.1 That Clauses 1, 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17,18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 38, 40, 43, 44, and 50 stand as part of the Bill.
9.1.2 That Clause 2 be amended by deleting the word Ministry from the list of definitions.
9.1.3 That Clause 5 be amended by adding the phrase in consultation with the Sector Standing Committee responsible for Administrative Services after the full stop in sub-clause (1).
That Clause 8 be amended by deleting the word Minister and inserting the word Higher Salaries Commission in its place.
9.1.4 That Clause 12 be amended by:
(a) deleting the words Government policy in sub-clause 2(a) and substituting it with the words policies formulated under sub-section 5(a);
(b) deleting the word broadcasting from the first line of sub-clause 5(a) and substituting it with the words broadcast licensing.
9.1.5 That Clause 19 be amended by deleting sub-clause (4).
9.1.6 That Clause 30 be amended by deleting the words consulting widely at the end of the sentence and inserting the words consultation pursuant to Clause 38.
9.1.7 That Clause 31 be amended by deleting all the words after Fund and substituting it with the words except that the licence fee may be paid by installment through the year.
9.1.8 That Clause 35 be amended by inserting the words within 90 days between the words may and approve in the second line.
9.1.9 That Clause 36 be amended by deleting the words given the licensee after the word realistic in paragraph (c).
9.1.10 That Clause 37 be amended by deleting the word Ministry in the first line of sub-clauses (1) and (2) and replacing it with the word Authority.
9.1.11 That Clause 39 be amended by deleting the figure 20% from sub-clause (1)(e) and replacing it with the words a specified percentage.
9.1.12 That Clause 41 be amended by:
(a) deleting the word Ministry in the first line of sub-clauses (1) and (4);
(b) inserting a full-stop after the word Code in the second line and deleting the words and, for purposes of implementation shall inform the Authority of any breaches it observes.
9.1.13 That Clause 42 be amended by adding a new sub-clause (2) which would read as follows Any Advertising, Programme or Technical Code that exists at the commencement of this Act is deemed to have been made under this Part.
9.1.14 That Clause 46 be amended by deleting sub clause (4).
9.1.15 That Clause 45(1) be amended by deleting the word to in the first line and replacing it with the words and must.
9.1.16 That Clause 46 be amended by deleting sub clause (4).
9.1.17 That Clause 47 be amended by inserting the word or after the word licensee in sub-clause (3)(b).
9.1.18 That Clause 48 be amended by inserting the words or to a term of imprisonment not exceeding 2 years in sub-clause (1), after the amount of $500,000.
9.1.19 The Committee strongly urges the Government to seriously consider the recommendations made in this Report before proceeding with the Bill.
10.0 Consideration of the Report, Paragraph by Paragraph
10.1 In accordance with Standing Orders 98(7) the Sector Committee considered this Report paragraph by paragraph and agreed to it by consensus.
11.0 Acknowledgment
11.1 The Sector Standing Committee wishes to place on record its appreciation to:
11.2 Officials of the Ministry of Information and Communication, and the First Parliamentary Counsel for assisting the Committee in its consideration of the Bill;
11.3 All media organizations and interested stakeholders and individuals that appeared before the Committee and also those that sent in written submissions;
11.4 The Secretariat for support services provided to the Committee during deliberations on the Bill.
The Report was signed and endorsed by the following Committee Members:
Hon. Simione Kaitani (Acting Chairperson);
Hon. Azim Hussein;
Hon. Damodran Nair;
Hon. Dewan Chand;
Hon. Joji Banuve;
Hon. Konisi Yabaki;
Hon. Nanise Nagusuca;
Hon. Mitieli Bulanauca;
Hon. Senator Ratu Solomone Buaserau;
Hon Surendra Lal.
Dated this 10th day of September 2006
Secretary-General to Parliament