Broadcasting Bill: reconsideration

ANC proposals, 23/2/99 (Appendix)

SUMMARY
Both parliamentary and state law advisors concurred that the Bill did not require the Minister to prescribe matters by regulations and they shared the President's reservations authorising the Minister to give instructions to the IBA.

Parties informally agreed to a reformulation of s40 (1). Agreement amongst the parties on Section 13(A) still requires more discussion.

MINUTES
The opposition parties did not table their proposed amendments as they first wanted to hear the parliamentary law advisor's opinion on the two clauses.

Clause 40 (1)
Adv Meyer said that after studying the Bill he had found that nothing in the Bill required anything to be prescribed by the Minister.

With reference to the Minister needing to issue notices and to determine administrative issues referred to in s38.2 of the Bill, Ms Smuts (DP) asked if the Minister needed to write a regulation. Adv Meyer replied that as a general rule, regulations are not necessary and their absence would not affect the validity of a notice. The same principle applied to "administrative or procedural issues" - regulations would not affect the legal power and they could be done either by regulations or administratively.

The state law adviser, Mr Kellner, said that he agreed with everything that Adv Meyer had said.

Mr Kekana (ANC) tabled a fresh ANC proposal and suggested that it be used as a working document as the committee needed something concrete so that it could proceed.

The opposition parties studied the proposal and the IFP and DP continued to insist that nothing in the entire act required prescription. Mr Kekana pointed out that Adv Meyer had said it was an option and as such this option should be retained as in the administration of this Act the Minister may need to prescribe regulations. The DP conceded that (b) and (c) of s40 (1) could perhaps be retained in some form though (a) must be taken out.

At this point a proposal was hammered out in rough which all parties appeared to accept as a draft for s40 (1):
"The Minister may by notice in the Gazette make regulations on any notice or administrative or procedural matters necessary to achieve the objectives of the Act".

Chairperson Moeti asked the law advisors if they were satisfied with s40 (2) of the ANC proposal. Adv Meyer noted that the phrase "or any other law" was suitably restrictive and Mr Kellner said that the introductory word "No" needed to be emphasised.

Mr Ntsizi (NNP) suggested that s40 (2) of the ANC proposal should be accepted and there was consensus.

Clause 13A
Adv Meyer said that on studying the Bill he shared the President's reservations authorising the Minister to give instructions to the IBA.

Mr Kekana agreed that this section left as is, could allow the IBA to be dictated to. He went through the ANC proposal which he said prescribed specifically where the Minister should play a role. With reference to (e) of (d)(ii) he said that tight control on the financial flow of the IBA was needed.

The opposition parties studied the proposal and made the following comments:
Ms Vos (IFP) said that the proposal included lots of SATRA matters and there appeared to be a blurring of the roles of SATRA, IBA and the Minister. Ms Vos referred the committee to (b) of the Schedule in the ANC proposal where it says:
(b) The Minister may take steps to deal with issues relating to transmissions emanating from outside the borders of the Republic and falling outside the jurisdiction of the regulator.
She said that her worst fears were confirmed that it was the government's intent to impede satellite transmission and control up-links and down-links of satellites. Mr Kekana replied that one could not have a hundred channels and this was a government matter not the regulator's.

Mr Ntsizi (NNP) said that the ANC proposal still had many directive terms in it such as "the Minister may determine" and "the Minister shall direct". He said their party needed time to study the proposal.

Ms Smuts (DP) said that it was a pity there could not be hearings on the issues before them. She pointed out that the IBA functions by act of parliament. If the IBA is required to undertake a special investigation, for example, why could this not be instituted by way of an amendment to the law? Such investigations are huge, long-term undertakings that could take up to ten years, such as a satellite investigation, and this type of directive could come through parliament rather than via the Minister. Mr Kekana replied that there might be urgent matters.

Ms Smuts said that she was looking for legitimate reasons why IBA matters could not be dealt with within the law. She pointed out that both (b) and (c) of (d) (ii) of the Schedule in the ANC proposal were long-term and could be built into the law via amendments. She felt the ANC proposal (e) of (d) (ii) of the Schedule was "disastrous". She did commend the ANC in as far as the proposal indicated that someone had applied their mind to the issues.

With reference (e) of (d) (ii), Mr Kekana said there was a grey area as to how the council functions here. For example if the Auditor-General adopted a new standard for all state organs to ensure tight control on finances from fiscus, then there would need to be direction from the Minister. He did agree with Ms Smuts that there was the danger that whoever was controlling the purse may infringe on a body's independence.

Concerning (a) of (d) (ii), Ms Smuts said that it was important to have independent frequency allocation which was something SATRA should do. If all the regulator did was to set aside allotments and the Minister allocated them, this would make lots of people unhappy. She reiterated her concerns regarding the Minister issuing directives concerning special investigations. She said that one had to consult properly the industry (which should not be a mere "gesture") and then issue directives in law.

Mr Kekana rejected the DP view that consultation of bodies in the industry was a fruitless gesture.

Ms Vos asked the legal advisors to look at the ANC proposal in terms of frequency allocation and other policy areas especially the blurring of the roles of the IBA and SATRA.

The chairperson asked parties to submit their concerns in writing to the legal advisors. A date for the next meeting on this issue was not set.

Appendix: ANC proposed amendments

BROADCASTING BILL 1998 23/2/99

ANC AMENDMENTS

Clause 40

Clause rejected

New clause

That the following be a clause to following on clause 39:

Regulation:

40 (1) The Minister may by notice in the Gazette make regulations regarding any matter which is required to be prescribed by this Act.

(2) No regulation may be made in terms of subsection (1) on any matter falling within the functions of the Authority in terms of this Act the IBA Act (1993) or any other law.

Schedule

On page 50 in item 6 to omit (a) of the proposed section 13 A and to substitute:

(a) The Minister shall determine the extent and nature of the acquisition and disposal of state broadcasting assets

(b) The Minister may take steps to deal with issues relating to transmissions emanating from outside the borders of the Republic and falling outside the jurisdiction of the regulator.

On page 50 in item 6 to omit (b) of the proposed section 13 A and to substitute:

(c) The Minister shall direct the authority to:

(i) undertake special investigations inquiries and report on any matter within its jurisdiction

(ii) consider any matter placed before it for urgent consideration

(iii) determine priorities for the development of broadcasting services

On page 50 in item 6 to omit paragraph (d) of the proposed section 13A and to substitute:

(d) (i) Subject to subparagraphs (iii) and (iv) and the Broadcasting Act, 1998 the Minister may issue to the Authority policy directions of general application on matters of broad national policy consistent with the objects mentioned in section (2) of the Broadcasting Act 1998

(ii) The directions contemplated in subparagraph (i) may include:

(a) The allocation of the radio-frequency spectrum to the authority for the purpose of planning broadcasting and other services.

(b) The universal service coverage targets or public broadcasters

(c) The country's obligations and undertakings under international treaties and conventions including technical standards and frequency matters.

(d) General government policies as they apply to new technologies that interface with broadcasting.

(e) General government regulations on financial revenue and expenditure controls.

(iii) No such direction may be issued regarding the granting of a licence or regarding the amendment suspension or revocation of a licence.

(iv) No direction may be issued in terms of subparagraph (i) which interferes with the independence of the Authority or which affects the powers and functions contemplated in section 13.

On page 52 in item n to omit paragraph (g) of the proposed section 13A.