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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT
(NEWS MEDIA DIVERSITY) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
BROADCASTING LEGISLATION AMENDMENT (NEWS MEDIA DIVERSITY)
BILL 2013
OUTLINE
This Bill, together with the Broadcasting Legislation Amendment (Convergence Review and
Other Measures) Bill 2013, the Television Licence Fees Amendment Bill 2013, the News
Media (Self-regulation) Bill 2013, the News Media (Self-regulation) (Consequential
Amendments) Bill 2013 and the Public Interest Media Advocate Bill 2013 form a package of
measures representing the Australian Government's response to two independent reviews
conducted in 2011and 2012 - the Convergence Review and the Independent Inquiry into the
Media and Media Regulation.
This Bill responds to matters raised in the Convergence Review in relation to the importance
of diversity of media control by introducing a public interest test for transactions involving
significant news media voices.
The Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill
2013 responds to matters raised in the Convergence Review in relation to use of the sixth
channel of television broadcasting spectrum, Australian content and public broadcasting, and
includes certain other measures.
The Television Licence Fees Amendment Bill 2013 provides for the 50 per cent reduction in
the licence fees paid by commercial television broadcasters currently specified in regulations
to be made permanent in legislation on an ongoing basis.
The News Media (Self-regulation) Bill 2013 and the News Media (Self-regulation)
(Consequential Amendments) Bill 2013 respond to matters raised in the Convergence Review
and the Independent Inquiry into the Media and Media Regulation relating to standards of
media news and commentary.
The Public Interest Media Advocate Bill 2013 creates a new independent statutory office
which will perform functions under the News Media (Self-regulation) Bill and the public
interest test to be established in new Part 5A of the Broadcasting Services Act 1992 (BSA) by
this Bill.
This Bill inserts a new Part 5A in the BSA dealing with news media diversity. Under the new
Part changes of control of significant news media voices will require approval by a Public
Interest Media Advocate (PIMA) applying a new public interest test. The ACMA will
maintain a register of the news media voices regulated by the new Part.
The public interest test to be applied by the PIMA is:
the change of control will not result in a substantial lessening of diversity of control of
registered news media voices; or
the change of control is likely to result in a benefit to the public, and that benefit
outweighs the detriment to the public constituted by any lessening of diversity of
control of registered news media voices.
News media voices will include commercial television and radio and subscription television
services that provide news or current affairs programs, subscription television platforms (such
as Foxtel) that include such services, and print publications and online services that have
news or current affairs content.
In order to apply the new Part to significant news media voices only, voices will be registered
if their audience or customer base exceeds 30 per cent of the average metropolitan
commercial television evening news audience.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill are expected to have no significant financial impact on
Commonwealth expenditure or revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Legislation Amendment (News Media Diversity) Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This Bill, together with the Broadcasting Legislation Amendment (Convergence Review and
Other Measures) Bill 2013, the Television Licence Fees Amendment Bill 2013, the News
Media (Self-regulation) Bill 2013, the News Media (Self-regulation) (Consequential
Amendments) Bill 2013 and the Public Interest Media Advocate Bill 2013 form a package of
measures representing the Australian Government's response to two independent media
reviews conducted in 2011 and 2012 - the Convergence Review and the Independent Inquiry
into the Media and Media Regulation.
The Bill inserts a new Part 5A in the Broadcasting Services Act 1992 (BSA) dealing with
news media diversity. Under the new Part changes of control of significant news media
voices will require approval by a Public Interest Media Advocate (PIMA) applying a new
public interest test. The ACMA will maintain a register of the news media voices regulated
by the new Part.
Human rights implications
The Bill engages the right to freedom of expression.
The right to freedom of expression
Australia is a signatory to the International Covenant on Civil and Political Rights (the
ICCPR). This convention is listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. Article 19(2) of the ICCPR protects freedom of expression, including the right to
seek, receive and impart information and ideas of all kinds, and their means of dissemination.
The Bill contains measures placing limits on the ability of companies and individuals to
control a registered news media voice or listed news media voice where that ownership is
likely to result in a lessening of diversity of controllers of registered news media voices or
listed news media voices. The PIMA must approve transactions involving changes of control
of registered news media voices or listed news media voices.
In giving its approval, the PIMA must be satisfied that where a transaction will result in a
substantial lessening of diversity, it will result in a net benefit to the public and that the
benefit will outweigh any detriment associated with a lessening of diversity. The PIMA may
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take into consideration undertakings made by the applicant to mitigate the impact of the
lessening of diversity.
These measures may limit the rights of natural persons to exercise freedom of expression as
outlined in Article 19(2) of the ICCPR by precluding a person from being in a position to
control a registered news media voice or listed news media voice. Article 19(3) of the
ICCPR, however, emphasises that there are special duties and responsibilities associated with
Article 19(2). These duties and responsibilities recognise that an unfettered right to free
expression is capable of violating the human rights of others. As a consequence of the nature
of the media market in Australia, economies of scale dictate that media ownership tends to
result in the concentration and monopolisation of media operations. Such concentration of
ownership and control can lead to the dissemination of more limited points of view, with the
corollary of limiting citizens' access to multiple points of view or opinion.
The measures in the Bill are designed to mitigate the risks associated with media
concentration. Diversity in the media contributes to a well-functioning democratic society by
providing citizens with a range of informed points of view and preventing any one media
owner from exercising too much influence over public opinion or the political agenda. The
United Nations has noted that it is also of the view that positive measures are in some
circumstances necessary to prevent control of the media where that control would lead to
interference with the freedom of expression of others (UN Human Rights Committee,
General Comment 10, paragraph 2).
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
To the extent that the measures may limit the rights of natural persons to exercise freedom of
expression, by precluding a person from being in a position to control a registered news
media voice or listed news media voice, the measures are reasonable and proportionate to the
goal of promoting diversity of media control in order to promote access to diverse sources of
news and information.
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ABBREVIATIONS
ACMA Australian Communications and Media Authority
ACMA Act Australian Communications and Media Authority Act 2005
AI Act Acts Interpretation Act 1901
BSA Broadcasting Services Act 1992
LI Act Legislative Instruments Act 2003
Minister Minister for Broadband, Communications and the Digital
Economy
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NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the short title for the Act. When enacted, the
Bill is to be cited as the Broadcasting Legislation Amendment (News Media Diversity)
Act 2013.
Clause 2 - Commencement
2. Clause 2 sets out when the provisions of the Act commence. The formal provisions in
sections 1 to 3 will commence on the day the Act receives the Royal Assent. The
provisions in Schedule 1 will commence on the later of: the day after this Act receives
the Royal Assent; and the day section 3 of the proposed Public Interest Media
Advocate Act 2013 commences (but they will not commence at all if section 3 of that
proposed Act does not commence).
Clause 3 - Schedule(s)
3. Clause 3 is a machinery provision that provides that each Act specified in a Schedule
is amended or repealed in accordance with the items of the Schedule concerned.
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Schedule 1 - Amendments
Amendments to the ACMA Act
Items 1 and 2 of Schedule 1 to the Bill amend the ACMA Act to authorise disclosures to be
made by ACMA officials to certain public officials, for the purpose of advising the PIMA.
Item 1 - After section 59B
Part 7A of the ACMA Act authorises the disclosure of certain information by the ACMA to
the Minister, Departments, government agencies and regulatory bodies.
Item 1 inserts proposed section 59BA into Part 7A of the ACMA Act, to authorise disclosure
of `authorised disclosure information' by ACMA officials to the Secretary of the Department
or APS employees in the Department (authorised by the Secretary), for the purpose of
advising the PIMA. The term `authorised disclosure information' is defined in section 3 of
the ACMA Act. This measure will enable the ACMA to assist the PIMA to perform his or her
functions, in accordance with clause 7 of the Public Interest Media Advocate Bill 2013.
Item 2 - After paragraph 59D(1)(na)
Section 59D of the ACMA Act provides for the disclosure of `authorised disclosure
information' by an ACMA official (authorised in writing by the ACMA Chair) to a number
of specified authorities.
Item 2 inserts a new paragraph into subsection 59D(1) of the ACMA Act to include the
PIMA as an authority to whom disclosure may be made by authorised ACMA officials.
Under subsection 59D(2) of the ACMA Act, the ACMA Chair may impose conditions to be
complied with in relation to `authorised disclosure information' disclosed under
subsection 59D(1).
Amendments to the BSA
Items 3 to 19 of Schedule 1 to the Bill amend a number of definitions contained in the BSA
to take into account the operation of new Part 5A (see Item 20, noted below).
Item 3 - After paragraph 3(1)(c)
Section 3 of the BSA sets out the objects of that Act. This item inserts a new object about
encouraging diversity in control of the more influential sources of news and current affairs.
The pursuit of the new object is to be facilitated by the regulatory framework set out in new
Part 5A (News media diversity), to be inserted by Item 20.
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Item 4 - Subsection 6(1) (definition of associate)
Item 5 - Subsection 6(1) (definition of associate)
Item 6 - Subsection 6(1) (at the end of the definition of associate, before the notes)
Item 8 - Subsection 6(1) (paragraph (a) of the definition of licence)
Item 9 - Subsection 6(1) (after subparagraph (a)(i) of the definition of licence)
Items 4 and 5 amend the definition of associate for the purpose of the BSA's control
provisions. Associate is broadly defined, and covers people who act, or are expected to act, in
concert in relation to control over a particular media operation. People are associates if they
are closely related - for example, related bodies corporate (within the meaning of the
Corporations Act 2001) are associates, as are commonly controlled companies, or people
who have an arrangement to act in concert in relation to the control of the media operation.
Similarly, people are associates if they are in a trust or partnership relationship. Individuals
closely related by blood or affinity will also be associates.
The presumptions about the types of people who are associates are subject to a `case by case'
exception where the ACMA is satisfied that, in fact, the people concerned are not acting
together in any relevant dealings relating to a media operation.
The term associate is currently defined in relation to control of a licence or a newspaper or
control of a company in relation to a licence or newspaper for the purposes of Part 5 of the
BSA and Schedule 1 to that Act.
Items 4 and 5 amend the definition to extend its application to control of a print publication
or an online service or a company more generally. This reflects the broader application of
new Part 5A (News Media Diversity) which will apply to companies that are subscription
television platforms, print publications and online services, in addition to licences and
newspapers.
Item 6 inserts text at the end of the definition of `associate' to provide that the terms print
publication and online service have the same meaning in this definition as they have in new
Part 5A, see proposed new section 78AB.
Item 9 amends the definition of licence used for the purposes of the control rules and related
provisions in the BSA to add the class licence that authorises subscription television
narrowcasting services. Item 8 applies the extended definition of licence to its usage in new
Part 5A of the BSA. These technical changes are needed to give full effect to the extension of
the BSA's news media diversity provisions in new Part 5A in their application to a
subscription television platform.
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Item 7 - Subsection 6(1)
Item 11 - Subsection 6(1)
Item 12 - Subsection 6(1)
Item 13 - Subsection 6(1)
Item 14 - Subsection 6(1)
Item 15 - Subsection 6(1)
Item 16 - After section 6
These Items insert or amend defined terms in, or following, section 6 of the BSA.
Each of the definitions concerns subscription television and relates to other measures in the
Bill dealing with control rules affecting nationally significant subscription television news
voices (see new Part 5A of the BSA, proposed to be inserted by Item 20 of this Bill).
The Bill recognises that certain subscription television services providing news or current
affairs (such as Sky News National) are significant news media voices. It also recognises that
important subscription television platforms (such as the Foxtel platform) which control the
selection of those services which will be supplied to subscribers, should also be treated as
significant news media voices.
The key vehicle under the amendments for regulating control of subscription television for
the purpose of encouraging diversity in control of the more influential sources of news and
current affairs is the subscription television platform, which introduces a new concept in the
BSA. Item 14 inserts the defined term subscription television platform, which directs the
reader to section 6A of the BSA (inserted by Item 16 in this Bill).
In defining a subscription television platform, the first key concept is a subscription television
service.
Item 15 defines a subscription television service. This term refers to a subscription television
broadcasting service or a subscription television narrowcasting service.
A subscription television broadcasting service (defined in section 6 of the BSA by
reference to section 16) provides television programs that, when considered in the
context of the service being provided, are intended to appeal to the general public,
upon payment of a subscription fee.
A subscription television narrowcasting service (defined in section 6 of the BSA, by
reference to section 17) also provides television programs upon payment of a
subscription fee. However the reception of those television programs is limited for
reasons including conditional access arrangements, or, in the context of the service
provided, being targeted to special interest groups or special events.
To complement the introduction of the subscription television service concept, Items 11 and
12 insert definitions of subscription television licence and subscription television licensee,
while Item 13 inserts a definition of subscription television narrowcasting licensee (which is
used in the definition of subscription television licensee along with the existing defined term
subscription television broadcasting licensee).
The concept of subscription television services reflects the current practice of subscription
television in Australia, where subscribers pay for access to a bundle of subscription television
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services composed of both subscription broadcasting services and subscription narrowcasting
services.
As noted above, Item 9 broadens the definition of licence to include a class licence to the
extent that it authorises the provision of subscription television narrowcasting services. This
ensures that the person who provides this service is taken into account for the purposes of
control inquiries made in accordance with new Part 5A of the BSA (proposed to be inserted
by Item 20 of this Bill).
The second key concept is the branded group of subscription television services. Item 7
would insert a `sign post' definition of branded group of subscription television services in
subsection 6(1) of the BSA, which refers the reader to new subsection 6A(1) (see Item 16).
As defined by the amendments made by Item 16, a branded group of subscription television
services refers to a group of two or more subscription television services marketed to the
public under a common brand (subsection 6A(1) refers). For example, there are dozens of
individual subscription television services that are marketed under the Foxtel brand. Common
branding makes all affected subscription television services a branded group of subscription
television services. It is also important to note that one subscription television service can be
marketed to the public under different common brands - for example, an individual service
could be marketed under the Foxtel brand and the TransACT TV brand.
The third key concept is the subscription television platform, also defined in Item 16. New
subsection 6A(2) provides that the subscription television platform means a company that
controls the selection of the subscription television services that are included in a branded
group of subscription television services (for example, which channels will be included in the
television packages available). More than one company can perform this function, depending
on how a particular subscription television business is organised.
The subscription television platform company is not necessarily the same company with
which the subscriber has a subscription agreement.
As noted previously, the object of the proposed amendments is to encourage diversity in
control of the more influential sources of news and current affairs. Important subscription
television platforms (such as the Foxtel platform) which choose the sources of news and
current affairs to be supplied to large numbers of subscribers (ie. control the selection of the
services), are to be subject to the new rules encouraging diversity of control.
Subsection 6A(3) provides that subsection 6A(2) is subject to subsection 6A(4).
Subsection 6A(4) empowers the Minister to declare, in writing, that subsection 6A(2) does
not apply to a specified company.
In addition, under subsection 6A(5), the Minister may declare, in writing, that for the
purposes of the BSA, a specified company is a subscription television platform for a specified
branded group of subscription television services. However, the Minister's power is limited
by the fact that a declaration under subsection 6A(5) only applies to a company in relation to
a branded group of subscription television services if the company is:
a constitutional corporation (defined in section 6 of the BSA) (see paragraph
6A(6)(a)), and
involved in any or all of the activities set out in paragraph 6A(6)(b).
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The specified activities identify a range of significant activities undertaken by a subscription
television platform:
(a) The provision of a subscription television service included in a branded group deals
with the situation where a subscription television platform is also a subscription
television service provider on its own account.
(b) The operation of a subscriber management system for a branded group refers to
involvement in managing access by subscribers to the subscription television services
that form part of the branded group. This may encompass the provision of the
software and hardware system through which a subscriber selects, pays for, and/or
accesses their subscription.
(c) The activity of selecting the subscription television services in the group may involve
entering into supply contracts with the providers of particular subscription television
services. This activity may also involve the organisation of those contracted services
into particular subscription packages for subscribers. For example, a number of
services may be offered as a `basic subscription package' (a bundle of services that
every subscriber gets access to), while other subscription television services are
reserved for `premium subscription packages' upon payment of a higher or additional
subscription fee.
(d) The activity of acquiring program content may involve the subscription television
platform contracting with channel providers or program suppliers for the production
or supply of programs for one or more subscription television services included in the
branded group.
The mechanisms in subsections 6A(4) and (5) are intended as an anti-avoidance mechanism
to enable the Minister to specify a particular company to be the platform if a platform adopts
a corporate structure which has the effect of avoiding the operation of the standard rule in
subsection 6A(2).
A copy of a declaration made under subsection 6A(4) or (5) must be published on the
Department's website (subsection 6A(7)). A declaration made under subsections 6A(4) or (5)
would not be a legislative instrument, as it would merely apply the law in a particular case
(subsection 6A(8), which is merely declaratory of the Ministerial instrument's character
rather than an exception to the Legislative Instruments Act 2003).
Item 10 - Subsection 6(1)
This item inserts a definition of the term PIMA in subsection 6(1) of the BSA. PIMA is
defined to mean the Public Interest Media Advocate. The legislative note directs the reader to
the PIMA's enabling legislation.
Item 17 - Section 7
Item 18 - Paragraph 7(a)
Item 19 - At the end of section 7
Section 7 of the BSA is an interpretation clause for the word control used in the BSA. As
amended by Items 17 and 18, subsection 7(1) directs the reader to Schedule 1 to the BSA.
The schedule sets out mechanisms for determining questions of control (including tracing of
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company interests) in a licence (as amended by Items 8 and 9, noted above), newspaper, print
publication, or online service. The terms print publication and online service have the same
meaning as in new Part 5A of the BSA, specifically proposed new section 78AB (see Item 20
of the Bill).
Item 19 adds new deeming provisions to section 7. Subsections 7(2) and (3) deem a person
who controls, respectively, a commercial television broadcasting licence or a subscription
television licence to control the service(s) provided under the authority of that licence.
Similarly, proposed subsection 7(4) deems a person who controls a subscription television
platform for a branded group of subscription television services to control each of the
subscription television services that belong to the branded group.
Item 20 - After Part 5
Item 20 inserts a new part, Part 5A, consisting of sections 78AA to 78NE.
Part 5A - News media diversity
Part 5A sets out new arrangements for protecting news media diversity, by introducing a
public interest test that will apply to transactions between registered news media voices of
national significance.
The Convergence Review undertaken in 2011 and 2012 highlighted that Australia's media
and communications sector is characterised by highly concentrated ownership. There is real
risk that the economics of the media business will result in a very small number of players
controlling the majority of nationally significant news and current affairs voices. The
proposed public interest test for media mergers and acquisitions is designed to encourage
diversity of ownership amongst Australia's largest and most influential news media voices.
The new public interest test will be administered by the PIMA, a new independent statutory
office. The PIMA will assess whether transactions involving changes of control of registered
news media voices will result in a substantial lessening of diversity of control of these voices.
The test would only engage with transactions that involve two or more separately controlled
news media voices that are above the specified audience threshold.
News media voices with an audience or subscriber figure above the proposed threshold will
be registered on the Register of News Media Voices. The register will be maintained by the
ACMA.
Prior approval of transactions must be sought by the person seeking a change of control of the
registered news media voice. The applicant must satisfy the PIMA that the transaction will
not result in a substantial lessening of diversity or the benefit of the transaction outweighs the
detriment caused by any lessening of diversity of control of news media voices. Following an
assessment, the PIMA will decide whether the transaction can or cannot proceed.
A key element of the transaction assessment process relates to the ability for parties to make
and negotiate enforceable undertakings with the PIMA. Undertakings in the context of the
public interest test provide a flexible alternative to refusing to approve a transaction when the
PIMA believes that a transaction will lead to a substantial lessening of diversity. It is
envisioned that undertakings will address diversity concerns whilst simultaneously permitting
12
the realisation of merger benefits, such as organisational efficiencies or improvements in
management. Opportunities to vary undertakings will be also be available and subject to
assessment by the PIMA.
The PIMA is provided information gathering powers for the purpose of enabling proper
consideration of whether a substantial lessening of news media diversity is likely following a
transaction. It is expected that transacting parties will comply with directions from the PIMA,
however civil penalties apply to parties that do not comply with requests for information.
The public interest test will be considered in a separate process to the ACCC's substantial
lessening of competition test, the ACMA's existing media diversity tests, and where
necessary, the FIRB's national interest test. The PIMA will draw on the extensive expertise
of the above agencies in order to ensure the effective operation of the public interest test
alongside FIRB approvals, mergers and acquisitions approvals, and existing media ownership
laws.
Merits review of decisions will not be available due to the nature of the assessment process
being undertaken by the PIMA. The process, which will involve elements of both an inquiry
and a negotiation, has been designed to ensure transacting parties reasonably engage with the
PIMA during the assessment process. The Administrative Review Council Guidelines note
that processes that would be time-consuming and costly to repeat on review--as would be the
case with consideration of the proposed public interest test and negotiation of associated
undertakings--may be exempted from including a merits review process.
Following a decision, the PIMA is required to publish a statement of reasons on the
Department's website.
Interim arrangements have been established to enable the PIMA to assess transactions that
occurred before the commencement date that may impact news media diversity. This measure
is intended as an anti-avoidance mechanism to reduce the incentive for news media voices
engaging in diversity-lessening transactions prior to the Bill's commencement date.
Division 1 - Introduction
Section 78AA - Simplified Outline
Section 78AA contains a simplified outline for new Part 5A.
Section 78AB - Definitions
New section 78AB provides defined terms that are used in Part 5A, including `sign post'
definitions. Most of the `sign post' definitions refer the reader to other provisions in the Part
that contain a substantive definition. The `sign post' definition for carriage service refers the
reader to the term as defined in section 7 of the Telecommunications Act 1997. A carriage
service means a service for carrying communications by means of guided and/or unguided
electromagnetic energy.
The key definitions contained in section 78AB are explained below. The definitions appear in
alphabetical order in the Bill, and are explained here in alphabetical order except where the
defined term includes another defined term.
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Media-related activities
The defined term media-related activities is fundamental to the application of Part 5A to print
publications and online services as categories of news media voices (see section 78GA). A
print publication and an online service will only be regulated as a news media voice if,
among other conditions set out in section 78GA, the publisher of the print publication or the
provider of the online service is wholly or principally engaged in media-related activities.
For the purpose of this Part, media-related activities are defined as the collection, the
preparation for dissemination, or the dissemination of material for the purpose of making it
available to the public, either in printed form or by means of electronic communications. This
concept is intended to distinguish between people whose core business is the media,
compared to those people for whom the media is an incidental activity. Examples of the latter
include:
a university produces a newsletter (whether hardcopy or softcopy) that contains news
or analysis about the university's educational and research activities. The university's
core activities are education and research, not media; and
a retailer produces a newsletter or magazine (whether hardcopy or softcopy) that
contains news or opinion about the goods and services that it sells. The retailer's core
activities are to sell particular goods and/or services (which is not the newsletter or
magazine, as such). Its media-related activities - being the production of material for
public relations purposes - are incidental to its core business.
In short, media-related activities cover various manifestations of the exercise of editorial
control over material by a person whose core business is the media.
News or current affairs aggregation service
The defined term news or current affairs aggregation service means a service (including an
online service) that does no more than aggregate (defined in section 78AB) material that has
the character of news or current affairs, or material that consists of commentary or opinion, or
analysis, about news or current affairs. This defined term is used in section 78GA (News
media voices) to distinguish between those online services that are subject to the new news
media diversity provisions, and those online services that are not (see paragraph 78GA(1)(j)).
An online service that is a news or current affairs aggregation service is not a news media
voice for the purpose of Part 5A. This is because an aggregation service does no more than
link to or compiles a selection of news or current affairs material (including related
commentary and analysis) where other people produce that material. As such, the aggregation
service is not in a position to influence materially the production or content of news or
current affairs material. A service that provides some aggregated content while also providing
content that it produces itself will be a news media voice.
News or current affairs content
The defined term news or current affairs content is used for the purpose of identifying news
media voices that are subject to the PIMA's jurisdiction (see section 78GA). The publisher of
a print publication, the provider of an online service, subscription television service,
commercial radio broadcasting service, or commercial television broadcasting service will
14
only be considered a news media voice if, among other things, they provide or specialize in
news or current affairs content. Such content also includes, in respect of television and radio
services, news or current affairs programs.
The term news or current affairs content is also used to scope the PIMA's jurisdiction to
accept undertakings, including applications to withdraw undertakings (see section 78DA).
Online service
The defined term online service is fundamental to the operation of this Part. Online service is
defined to exclude broadcasting and datacasting services (both defined in section 6 of the
BSA). For proposed Part 5A, an online service has two alternative meanings, both of which
require the use of electronic communications.
Electronic communications means communications that are carried by means of guided
and/or unguided electromagnetic energy.
First, an online service is a service that delivers content to persons having equipment
appropriate for receiving the content, where the service is delivered by electronic
communications.
Second, an online service is a service that allows end-users to access content using electronic
communications. Accordingly a service that allows end-users to access content using a
particular type of network or application is an online service. An online service includes a
website (the definition of service refers). Content in a `walled garden' (i.e. where a service
provider has control over applications, content, and media on certain platforms and restricts
access to non-approved applications or content) would be provided by an online service
within the meaning of this Part.
For the purpose of this Part, the definition of online service must be read in conjunction with
the definition of online service provider (see section 78NA, noted below).
Paying customer
The defined term paying customer is critical to identifying an online service that is a news
media voice (see paragraph 78GA(1)(j)), and also to determining whether an online service,
being a news media voice, qualifies for registration on the Register of News Media Voices.
Paying customers are also relevant to determining whether a particular broadcasting service
or print publication qualifies for registration (see proposed section 78HF in relation to online
services that are registrable news media voices).
A paying customer refers to one of two things. First, under paragraph (a) of the definition, a
subscriber to the online service is a paying customer. For example, a person who subscribes
to the Crikey Daily Mail, or who pays for a `Digital Pass' to access content published by The
Australian is a paying customer of an online service. Under paragraph (b) of the defined
term, a person who pays to access particular content that is provided by the online service is a
paying customer. This second limb of the definition is intended to cover `pay per view' or
similar fee based arrangements (other than subscriptions) that govern access to, or delivery
of, content provided by an online service.
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Print publication
A print publication means a newspaper or a periodical that is published at least once each
quarter. A publisher of a print publication will be a news media voice for the purpose of Part
5A. As a result Part 5A will capture a wider variety of print media than is currently captured
in the existing Part 5 of the BSA (which deals with control of newspapers that are associated
with a commercial television or commercial radio broadcasting service; different publication
frequency and circulation thresholds apply in Part 5).
Pre-commencement period and interim period
The defined terms pre-commencement period and interim period are relevant to the
transitional arrangements. Particular notification requirements apply in respect of control
events that occur during the pre-commencement period (see section 78MD). Similarly, the
PIMA has a distinct jurisdiction in respect of control events that occur during the pre-
commencement period (see section 78EC). The pre-commencement period begins from the
time when the Bill is introduced into the House of Representatives and ends on the
commencement date for Part 5A. The extension of the PIMA's jurisdiction (and
complementary notification provisions) to control events that occurred before the
commencement of Part 5A is necessary to create a disincentive for transactions being brought
forward to avoid the operation of the new legislation.
The interim period begins when the pre-commencement period ends (upon the
commencement of Part 5A). The interim period operates until the earlier of two dates, being
the date the Register of News Media Voices is established (which is the initial Register
completion day determined by the ACMA), or the expiry of six months after the
commencement date. The interim period performs a similar function to the pre-
commencement period in that the publisher of a print publication and an online service
provider are required to notify the ACMA of their controllers, which facilitates the
establishment of the Register.
Section 78AC - Newspapers
Proposed section 78AC provides that the current definition of newspaper in section 6(1) of
the BSA does not apply to Part 5A. This is because the new Part applies to a broader range of
newspapers, in accordance with the definition of print publication in section 78AB (noted
above).
Division 2 - Control events
Division 2 of proposed Part 5A defines control events and prohibits a person from being a
party to them or permitting them unless they occur with the prior approval of the PIMA. A
breach of this prohibition will be an offence and incur liability to a civil penalty.
No control event occurs where a person who is not in a position to control a registered news
media voice gains control over a single registered news media voice. An event of that nature
would increase the diversity of media ownership. Control events only occur when a person
gains initial control of two or more registered news media voices, or increases the number or
changes the mix of voices they control when they already control two or more voices.
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The concept of news media voices is dealt with in Division 7 of new Part 5A (section 78GA).
Registrable news media voices are dealt with in Division 8 of new Part 5A (sections 78HA to
78HH). The Register of News Media Voices is required by Division 10 of new Part 5A
(sections 78KA to 78KD).
An interim arrangement for dealing with control events that occur before the establishment of
the Register of News Media Voices is provided by Division 9 (section 78JA), which
identifies the listed news media voices. The PIMA has jurisdiction over control events that
occur before or during the interim period in relation to listed news media voices.
Section 78BA - Control events - registered news media voices
Each control event involves gaining control of registered news media voices. The control
events in relation to registered news media voices are summarized in the following table:
Subsection Starting position Control event
Paragraph (a) Paragraphs (b) to (d)
78BA(1) A person is not in a position The person becomes in
to exercise control of any a position to exercise
registered news media voices control of 2 or more
registered news media
voices
78BA(2) A person is in a position to The person becomes in
exercise control of a single a position to exercise
registered news media voice control of one or more
additional registered
news media voices
78BA(3) A person is in a position to The person becomes in
exercise control of two or a position to exercise
more registered news media control of one or more
voices additional registered
news media voices
78BA(4) A person is in a position to In related events, the
exercise control of two or person ceases to be in a
more registered news media position to exercise
voices control of one or more
of those registered news
media voices and
becomes in a position to
exercise control of one
or more other registered
news media voices
Section 78BB - Control events - listed news media voices
Section 78BB applies similar rules to those in section 78AB to listed news media voices,
which refers to the particular media operations specified in section 78JA. Section 78BB
applies to listed news media voices regardless of whether the control event occurs before or
after the commencement of the provision.
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During the interim period, the decisions of the PIMA will be based on the diversity of control
of listed news media voices. After the interim period, the register of news media voices will
take effect, and decisions of the PIMA will be based on the diversity of control of registered
news media voices.
Subsection Starting position Control event
Paragraph (a) Paragraphs (b) to (d)
78BB(1) A person is not in a position The person becomes in a
to exercise control of any position to exercise
listed news media voices control of 2 or more
listed news media voices
78BB(2) A person is in a position to The person becomes in a
exercise control of a single position to exercise
listed news media voice control of one or more
additional listed news
media voices
78BB(3) A person is in a position to The person becomes in a
exercise control of two or position to exercise
more listed news media control of one or more
voices additional listed news
media voices
78BB(4) A person is in a position to In related events, the
exercise control of two or person ceases to be in a
more listed news media position to exercise
voices control of one or more of
those listed news media
voices and becomes in a
position to exercise
control of one or more
other listed news media
voices
Sections 78BC - Prohibition of transactions that result in a control event occurring in
relation to one or more registered news media voices - offence
Sections 78BD - Prohibition of transactions that result in a control event occurring in
relation to one or more listed news media voices--offence
Sections 78BE - Prohibition of transactions that result in a control event occurring in
relation to one or more registered news media voices - civil penalty
Sections 78BF - Prohibition of transactions that result in a control event occurring in
relation to one or more listed news media voices--civil penalty
Sections 78BC and 78BD provide that a person who is a party to, or in a position to prevent,
one or more transactions that result in a control event occurring, commits an offence if the
transaction(s) that give rise to the control event are not approved by the PIMA under section
78CB. Section 78BC applies to control events that occur after the interim period, while
section 78BD applies to control events that occur during the interim period.
The application of these sections is subject to the proviso that the transactions take place after
the commencement of the section - this ensures that criminal responsibility is not
retrospectively applied.
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The elements of the offence are modelled on similar provisions already in the BSA:
section 66 (dealing with breaches of broadcasting control rules);
section 61AMB (dealing with unacceptable cross-media control situations); and
section 61AG (dealing with unacceptable media diversity situations).
The maximum punishment for a person who commits an offence under section 78BC is
20 000 penalty units (currently $3.4 million).
Sections 78BE and 78BF enact civil penalty provisions in similar terms to sections 78BC and
78BD. A person is liable for a civil penalty if they are a party to the transaction(s) or in a
position to prevent the transaction(s) taking place.
Under current section 205G of the BSA, proceedings seeking a civil penalty order may be
brought only by the ACMA. The proceedings would be brought in the Federal Court (current
section 205F of the BSA) and the Court may not make a penalty order with respect to a
contravention if the person has already been convicted of an offence constituted by conduct
that is substantially the same as the conduct constituting the contravention (current section
205L of the BSA). This restriction maintains the substance of the rule against double
jeopardy as applied to civil penalties.
Items 21 and 22 (noted below) amend Part 14C of the BSA to allow the ACMA to seek
injunctive relief from the Federal Court in respect of an alleged contravention of
sections 78BE and 78BF.
Division 3 - Prior approval of transactions that result in a control event occurring
This Division sets out the process for obtaining prior approval from the PIMA for proposed
transactions that would result in control events.
Section 78CA - Application for prior approval of transactions that result in a control event
occurring
Section 78CA provides that a person may apply to the PIMA, using the PIMA's approved
form, for prior approval of transactions that would otherwise place the person in breach of
sections 78BC, 78BD, 78BE or 78BF.
Section 78CA also provides that the PIMA may make a written request to the applicant
seeking additional information. The PIMA's request must be made within 30 days of receipt
of the application.
Section 78CB - Prior approval of transactions that result in a control event occurring
Where an application is made under section 78CA, the PIMA must consider it and either
approve it, or refuse to approve it.
The criteria applied by the PIMA in making decisions will change after the end of the interim
period.
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Subsection 78CB(4) sets out the criteria for approval of transactions relating to one or more
listed news media voices during the interim period. During this period, the PIMA must not
approve a transaction unless either of the following situations:
the applicant satisfies the PIMA that the relevant control event will not result in a
substantial lessening of diversity of control of listed news media voices; or
the PIMA is satisfied that the relevant control event is likely to result in a benefit to
the public which outweighs, or would outweigh, the detriment to the public caused by
any lessening of diversity of control of listed news media voices.
Subsection 78CB(3) sets out the criteria for approval of transactions relating to one or more
registered news media voices after the end of the interim period. The PIMA must not approve
the transaction unless:
the applicant satisfies the PIMA that the relevant control event will not result in a
substantial lessening of diversity of control of registered news media voices; or
the PIMA is satisfied that the relevant control event is likely to result in a benefit to
the public which outweighs, or would outweigh, the public detriment constituted by
any lessening of diversity of control of registered news media voices as a result of the
relevant control event.
When deciding whether to approve a transaction (either during or after the end of the interim
period), the PIMA may have regard to any other relevant matters, including any relevant
undertakings given by the applicant and accepted by the PIMA under section 78DA, and not
withdrawn (subsection 78CB(5) refers).
Subsection 78CB(6) provides that, where the PIMA approves the transaction, the approval
will remain in force until the end of the period specified in the approval.
Subsection 78CB(7) sets out timeframes for the PIMA's decisions. The expectation is that the
PIMA will make its decision within 90 days of receiving the applicant's complete
information (which may include additional information requested by the PIMA).
Subsections 78CB(8) and (9) respectively set out the formal particulars for the PIMA's
notices of approval or refusal of the transaction. The PIMA's notice, and reasons, must be
published on the Department's website. The PIMA's duty to publish attracts qualified
privilege under the laws of defamation.
The PIMA's decision is not subject to merits review. Merits review of decisions will not be
available due to the nature of the assessment process being undertaken by the PIMA. The
process, which will involve elements of both an inquiry with substantial public consultation
and potentially a negotiation, has been designed to ensure transacting parties reasonably
engage with the PIMA during the assessment process. The Administrative Review Council
Guidelines note that processes that would be time-consuming and costly to repeat on
review--as would be the case with consideration of the proposed public interest test and any
negotiation of associated undertakings--may be exempted from including a merits review
process.
Section 78CC - Consultation before making decision
Before making a decision under subsection 78CB(2), the PIMA must undertake public
consultation about the proposed decision. The consultation period runs for 28 days after the
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publication of the PIMA's consultation notice on the Department's website. The PIMA must
consider any submissions received during that period.
Division 4 - Undertakings
Proposed Division 4 of the new Part 5A deals with voluntary undertakings, which is an
important means of securing public benefit when the PIMA considers applications for
approval of transactions that may result in reduced diversity of control of registered news
media voices. The use of undertakings to secure the achievement of statutory policy
objectives has precedent in the BSA. In addition to the general provisions in Part 14D of the
BSA, the existing media ownership provisions in Part 5 of the BSA also contain a specific
provision for enforceable undertakings (see current sections 61AS and 61AT). The new
provisions will allow a person to give an undertaking to the PIMA in connection with an
application seeking approval of a change of control regulated by the new Part 5A.
Section 78DA - Acceptance of undertaking
Subsection 78DA(1) authorizes the PIMA to accept a written undertaking that the person will
take specified action, or refrain from taking specified action, in relation to news or current
affairs content provided by a specified registered news media voice, or, during the interim
period, by a specified listed news media voice.
It is intended that undertakings will, in the context of an application for prior approval of a
transaction, provide a means for maintaining diversity of control of registered (or listed) news
media voices. It is intended that undertakings could relate to structural measures to maintain
diversity, such as undertakings to dispose of particular assets within particular periods.
Undertakings could also extend to behavioural matters, although structural undertakings are
more likely to be preferred as they are usually clearer, more certain of implementation,
require less administrative burden in terms of regular reporting from the parties involved and
require less intensive regulatory monitoring than behavioural undertakings.
The formal requirements for an undertaking are set out in subsection 78DA(2), while
subsection 78DA(3) confirms that an undertaking (or particular provisions of it) can be
expressed as contingent upon the occurrence of a specified event. Subsections 78DA(8) and
(9) recognize that an undertaking may also confer functions and powers on either the PIMA
or the ACMA, in which case both the PIMA and the ACMA are authorized to perform those
functions or exercise those powers.
For example, an undertaking might be prepared for the situation where a person acquires a
15 per cent share holding in a particular media operation, which results in a control event. To
facilitate the PIMA's approval of this transaction the undertaking might provide that the
person will not acquire additional shares in any of the registered news media voices they
control without seeking further approval from the PIMA. To the extent that the undertaking
confers an additional function and power on the PIMA, this is authorized by subsection
78DA(8).
Similarly, an undertaking might be prepared for the situation where a person takes over a
particular media operation, which results in a control event. To facilitate the PIMA's
approval of this transaction the undertaking might provide that the person will dispose of
their controlling interest in another media operation within a specified period. The
21
undertaking may confer on the ACMA the power to issue a certificate of compliance with
respect to the disposal action. To the extent that the undertaking confers an additional power
on the ACMA, this is authorized by subsection 78DA(9).
Subsection 78DA(4) provides for the applicant to vary or withdraw an undertaking at any
time before the PIMA accepts it. Separately, sections 78DB and 78DC provide for the
variation or withdrawal of an undertaking after the PIMA has accepted it.
Subsections 78DA(5) and (6) provide that when deciding whether to accept an undertaking,
the PIMA must have regard to the need to maintain diversity of control of registered media
voices (or, during the interim period, listed media voices). The PIMA can also have regard to
any other relevant considerations. Before deciding to accept an undertaking, the PIMA must
consult the ACMA (subsection 78DA(7) refers).
If an undertaking is accepted, the PIMA must publish a summary of it on the Department's
website (subsection 78DA(10) refers). The PIMA also has the discretion to publish the entire
undertaking on the Department's website (subsection 78DA(11)), although in practice this
decision would need to take into account any issues of commercial confidentiality.
Section 78DB - Variation of undertaking
Section 78DB sets out the process under which a person who has given an undertaking that
has been accepted by the PIMA may apply to vary the undertaking. The PIMA has
responsibility to consider the variation and to decide whether to accept or reject the proposed
variation. The process in this provision mirrors the process set out in section 78DA.
Before making a decision, the PIMA must consult the ACMA and the public, and use his or
her best endeavours to make a decision within 90 days of receipt of the variation proposal
(subsections 78DB(6) and (7), and section 78DD refer).
The policy objectives for the PIMA's decision are set out in subsections 78DB(4) and (5).
The PIMA must consider the need to maintain diversity of control of registered news media
voices (or, during the interim period, of listed news media voices), and such other matters as
the PIMA considers relevant.
Subsections 78DB(8) and (9) provide that if the PIMA accepts or rejects the variation, the
PIMA must give written notice to the person and the ACMA, and (for acceptance decisions)
set out the terms of the variation or (for refusal decisions) set out its reasons.
If a variation to an undertaking is accepted, the PIMA must publish a summary of it on the
Department's website (subsection 78DB(10) refers). The PIMA also has the discretion to
publish the entire undertaking on the Department's website, although in practice this decision
would need to take into account any issues of commercial confidentiality.
Section 78DC- Withdrawal of undertaking
Section 78DC sets out the process under which an undertaking may be withdrawn after the
PIMA has accepted it. As an undertaking may have been accepted in the context of the prior
approval of a transaction resulting in a lessening of diversity of control of registered news
media voices, the undertaking cannot be withdrawn unilaterally; the PIMA must consent
22
(subsection 78DC(2)). Subsections 78DC(3) and (4) set out the formal requirements for an
application seeking the PIMA's consent.
Before making a decision on whether to consent to the withdrawal of an undertaking
(subsection 78DC(5)), the PIMA must consult the ACMA and the public, and use his or her
best endeavours to make a decision within 90 days of receipt of the application
(subsections 78DC(8) and (9), and section 78DD refer).
Subsections 78DC(6) and (7) require the PIMA to consider the need to maintain the diversity
of registered news media voices (or, in the interim period, the diversity of listed news media
voices), and such other matters (if any) as the PIMA considers relevant.
Subsection 78DC(10) provides that if the PIMA consents to the withdrawal of the
undertaking, he or she must give written notice to the person and the ACMA.
Subsection 78DC(11) provides that if the PIMA refuses consent to the withdrawal, he or she
must give written notice to the person and the ACMA.
Where the PIMA consents to the withdrawal, the PIMA must publish the withdrawal on the
Department's website (subsection 78DC(12)).
Section 78DD - Consultation - variation or withdrawal of undertaking
This section sets out the public consultation requirements for the PIMA's decisions under
subsections 78DB(3) (variation of an undertaking) and 78DC(5) (withdrawal of an
undertaking).
The PIMA must publish a notice on the Department's website setting out the proposed
decision and inviting persons to make submissions about the proposed decision within 28
days. The PIMA must consider any submissions that are received within the 28 day period.
Subsection 78DD(2) provides that the public consultation requirements do not apply to a
minor variation.
Section 78DE - Enforcement of undertaking
Section 78DE empowers the ACMA to take enforcement action in relation to an undertaking
that is in force. Where the ACMA considers that the person has breached the undertaking, the
ACMA may apply to the Federal Court.
The Federal Court will have power to make any of the following orders:
an order directing the person to comply with the undertaking;
an order directing the person to pay to the ACMA, on behalf of the Commonwealth,
an amount of money up to the amount of any financial benefit that the person has
obtained, directly or indirectly, that is attributable to the breach;
an order directing the person to compensate any other person who has suffered loss or
damage as a result of the breach; and
any other order that the court considers appropriate.
23
Division 5 - Remedial directions
This Division empowers the PIMA to issue remedial directions in situations where control
events have occurred without the PIMA's prior approval, as required by new section 78CB.
Remedial directions are widely used in the BSA. Generally, under the BSA, where a certain
event occurs or a situation exists (e.g. contravention of a licence condition or standard or the
existence of an unacceptable media diversity situation), a remedial direction may be issued by
the ACMA to specify the action that is required to be taken to ensure that the relevant event
or situation ceases or that the event will be unlikely to occur.
Section 78EA - Directions relating to control events that occur after the interim period
Section 78EB- Directions relating to control events that occur during the interim period
Section 78EC - Directions relating to control events that occurred during the pre-
commencement period
Section 78EA empowers the PIMA to issue remedial directions in relation to unapproved
control events that occur after the interim period, provided the PIMA has regard to the
objectives set out in subsection 78EA(7).
The purpose of this power is to enable the PIMA to unwind the effect of transactions that
occurred in breach of the requirement for prior approval. The PIMA would give directions to
maintain or restore diversity of control of registered news media voices.
The PIMA may direct a person to take specified action to ensure that the person ceases to be
in a position to exercise control of the registered news media voice (subsection 78EA(2)).
Examples of the different types of remedial directions are set out in subsection 78EA(3). The
examples are not exhaustive of the kinds of direction that may be given and
subsection 78EA(4) provides that these examples do not limit the general power set out in
subsection 78EA(2).
The directions mentioned in subsection 78EA(3) are:
a direction requiring the disposal of shares or interests in shares;
a direction restraining the exercise of any rights attached to shares, or interests in
shares;
a direction prohibiting or deferring the payment of any sums due to a person in
respect of shares, or interests in shares, held by the person; and
a direction that any exercise of rights attached to shares or interests in shares be
disregarded.
A direction issued by the PIMA must specify a time period for compliance with the direction,
provided the period is not longer than 12 months (subsections 78EA(5) and (6)).
Sections 78EB and 78EC empower the PIMA to issue remedial directions in relation to
unapproved control events that occur during the interim period or the pre-commencement
period. The exercise of the power is subject to substantially the same conditions as are set out
in section 78EA.
These sections relate to listed news media voices and will enable the PIMA to unwind the
effect of transactions in relation to control of these entities that occur before the register of
news media voices comes into effect. This is intended to reduce any incentive to bring
24
forward transactions in advance of passage and commencement of the legislation to avoid the
operation of the new rules.
Where a person receives a remedial direction from the PIMA, that person must comply with
the requirements of the directions or they risk potential compliance action being taken against
them (see proposed sections 78ED and 78EE, noted below).
Section 78ED - Breach of direction - offence
Section 78EE- Breach of direction - civil penalty
These proposed sections deal with the situation where the PIMA issues a remedial direction
to a person requiring them to take specified action(s), but that person does not comply with it.
A person who engages in conduct (defined in section 78AB by reference to acts or
omissions) that contravenes a remedial direction under section 78EA, 78EB or 78EC, is
criminally or civilly liable.
Enforcement action can be taken by the Director of Public Prosecutions (in respect of
offences) and the ACMA (in respect of civil contraventions).
Section 78ED provides that a separate offence is committed on each day on which the
contravention continues, including the day on which the person is convicted for the offence
and any later day. The maximum penalty for committing the offence is 20 000 penalty units
($3.4 million).
Section 78EE provides that a separate contravention of the civil penalty provision is
committed on each day on which the contravention continues, including a day on which a
civil penalty order is made or any later day.
Division 6 - Information-gathering powers
This Division sets out the PIMA's powers to obtain information and documents. The powers
relate to the operation of Part 5A, including consideration of transactions under Division 3 of
Part 5A, consideration of undertakings, withdrawal of undertakings and variations of
undertakings under Division 4 of Part 5A, and remedial directions under Division 5 of
Part 5A.
Section 78FA - PIMA may obtain information or documents
The PIMA may exercise the powers conferred by section 78FA when the PIMA believes on
reasonable grounds that a person has information or a document that is relevant to the
operation of Part 5A.
The PIMA is empowered to issue to any person notices for the production, within a specified
period and in a specified form, of any such information, documents or copies of documents
specified in the notice (subsection 78FA(2)). To ensure that a person has sufficient time to
comply with the notice, the specified period cannot be less than 14 days after the notice is
given (subsection 78FA(3)).
25
Subsection 78FA(4) provides that a person must comply with the notice. Failure to comply
with a notice may attract a civil penalty (subsection 78FA(5)). However, an individual may
refuse to comply with the notice if compliance would incriminate them. Nothing in this Bill is
intended to abrogate an individual's common law privilege against self-incrimination. A
company is not entitled to claim the privilege against self-incrimination if it is required to
answer a question or give information, or produce a document or any other thing under a
Commonwealth law (see section 187 of the Evidence Act 1995 (Cth)).
Section 78FB - Copying documents - compensation
Section 78FB states that a person is entitled to be paid reasonable compensation by the
Commonwealth for making and producing copies of documents in compliance with a notice
to produce issued by the PIMA under paragraph 78FA(2)(c).
Section 78FC - Copies of documents
Section 78FC provides that the PIMA may inspect a document, and make and retain copies of
all or part of a document obtained under section 78FA (subsection 78FC(1)). This power may
be required in situations where the PIMA needs to examine many, large, and/or complex
documents and information.
The PIMA may also retain a copy of a document produced pursuant to a notice covered by
paragraph 78FA(2)(c) (subsection 78FC(2)).
Section 78FD - PIMA may retain documents
The PIMA may take and retain for as long as is necessary an original document produced
under subsection 78FA(2).
If the PIMA takes an original document, the person otherwise entitled to possess the
document is entitled to be supplied with a true copy, certified by the PIMA, as soon as
practicable (subsection 78FD(2)). This rule is intended to ensure that the person providing the
original document is not disadvantaged by the PIMA retaining possession of it.
In any court or tribunal proceedings, the certified copy of the document must be admitted as
evidence as if it were the original document (subsection 78FD(3)). This ensures that the
PIMA's retention of the original document does not disadvantage the person who provided it.
As an additional safeguard, until the certified copy is supplied to the person the PIMA must,
at times and places that are appropriate, allow the person to inspect and make copies of all or
a part of the document (subsection 78FD(4)).
Division 7 - News media voices
Division 7 sets out the definition of the term news media voices. Certain news media voices
are required to be registered under Division 8 of Part 5A.
Section 78GA - News media voices
Subsection 78GA(1) outlines the services, platforms and publications that are included in the
term news media voice for the purposes of Part 5A.
26
The term news media voice includes the following:
commercial television broadcasting services that:
- provide regularly scheduled news or current affairs programs
(paragraph 78GA1)(a)(i));
- specialise in news or current affairs content (paragraph 78GA(1)(a)(ii)); or
- are specified in a legislative instrument made by the Minister
(paragraph 78GA(1)(b)).
The term commercial television broadcasting service is defined in section 6(1) of the
BSA as a commercial broadcasting service that provides television programs. Definitions
for news or current affairs program and news or current affairs content are in proposed
section 78AB.
Currently all commercial television broadcasting services provide regularly scheduled
news or current affairs programs. However, while these services would be considered to
be news media voices, only some commercial television broadcasting services would be
regulated by this Part, based on the size of their audience determined in accordance with
Division 8 (registrable news media voices) and Division 9 (listed news media voices).
commercial radio broadcasting services that:
- provide regularly scheduled news or current affairs programs
(subparagraph 78GA(1)(c)(i));
- specialise in news or current affairs content (subparagraph 78GA(1)(c)(ii)); or
- are specified in a legislative instrument made by the Minister
(paragraph 78GA(1)(d)).
The term commercial radio broadcasting service is already defined in section 6(1) of the
BSA as `a commercial broadcasting service that provides radio programs'. The terms
news or current affairs program and news or current affairs content are defined in
proposed section 78AB.
Currently most, but not all, commercial radio broadcasting services provide regularly
scheduled news or current affairs programs, or specialise in news or current affairs
content. Not all commercial radio broadcasting services will be news media voices. In
addition, even if a commercial radio broadcasting service is a news media voice, only
some services would be regulated by this Part, based on the size of the service's audience
determined in accordance with Division 8 (registrable news media voices) and Division 9
(listed news media voices).
subscription television services that:
- provide regularly scheduled news or current affairs programs targeted to the
Australian public (subparagraph 78GA(1)(e)(i));
- specialise in news or current affairs content targeted to the Australian public
(subparagraph 78GA(1)(e)(ii)); or
- are specified in a legislative instrument made by the Minister (paragraph 78GA(1)(f));
A definition of the term subscription television service would be inserted into
subsection 6(1) of the BSA by Item 15 of the Bill as a subscription television
27
broadcasting service as well as a subscription television narrowcasting service. Both of
these terms are already defined in subsection 6(1) of the BSA. The terms news or current
affairs program and news or current affairs content are defined in proposed
section 78AB.
Only a few subscription television services provide regularly scheduled news or current
affairs programs, or specialise in news or current affairs content. Furthermore, even if a
subscription television service is a news media voice, the only services regulated by this
Part are those that cross the audience threshold audience determined in accordance with
Division 8 (Registrable news media voices) and Division 9 (Listed news media voices).
subscription television platforms. The term subscription television platform is defined in
proposed new section 6A (see Items 14 and 16). A subscription television platform is a
news media voice because it controls the selection of subscription television services
(including those that specialise in news programs) that are made available to subscribers;
print publications. There are two categories of print publications included in the
definition of news media voice:
- paragraph 78GA(1)(h) - a print publication published by a constitutional corporation
whose activities are wholly or principally media-related activities:
o the content of which consists of or includes news or current affairs content;
o with the content targeted to the public in Australia;
o where the content is not targeted to a special interest group; and
o that is intended to be circulated wholly or principally by way of sale.
- paragraph 78GA(1)(i) - a print publication published by a constitutional corporation
and specified in a legislative instrument made by the Minister.
Definitions of the terms print publication, media-related activities and news or current
affairs program are included in proposed section 78AB. The term constitutional
corporation is already defined in subsection 6(1) of the BSA.
This provision would pick up metropolitan print publications (for example, The Sydney
Morning Herald or The Herald Sun) as well as regional print publications (such as The
Canberra Times or the Sunshine Coast Daily).
However, while these services would be considered to be news media voices, the print
publications that would be deemed to be registrable news media voices would be
determined under Division 8.
online services. There are two categories of online services included in the definition of
news media voice (paragraphs 78GA(1)(j) and (k)).
- a subscription-based service:
o that delivers or makes available news or current affairs content;
o provided by a person whose activities are wholly or principally media-related
activities;
o with the content targeted to the public in Australia;
o where the content is not targeted to a special interest group; and
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o that is not a news or current affairs aggregation service; and
- a service specified in a legislative instrument made by the Minister
(paragraph 78GA(1)(k)).
Definitions of the terms online service, news or current affairs program, news or current
affairs content, media-related activities and news or current affairs aggregation service
are included in proposed section 78AB.
Proposed section 78NA qualifies the types of online services regulated by Part 5A. A
provider of an online service is not regulated by this Part merely because:
- the person supplies a carriage service that enables content to be delivered/accessed
(for example, an internet service provider); or
- the person provides a billing service or a fee collection service in relation to an online
service does not bring the service into the definition of `online service' (for example,
a billing service product offered by a telecommunications provider).
The Minister has a reserve power to make a legislative instrument to specify a particular
service provider or print publication (see paragraphs 78GA(1)(b), (d), (f), (i) and (k)). This
enables certainty as to the particular services or publications, or classes of services or
publications, that are news media voices in the event there is doubt on the matter. The
legislative note at the end of subsection 78GA(1) refers the reader to subsection 13(3) of the
LI Act, which provides that in exercising a power in relation to a matter, a rule-maker may
identify the matter by referring to a class or classes of matters.
Exemptions
Subsection 78GA(2) provides that subsection 78GA(1) is subject to the exemptions set out in
subsections 78GA(3) to (8).
Subsections 78GA(3) to (8) provide that the Minister may, by legislative instrument, specify
that a particular service is not classified as a news media voice for the purposes of Part 5A.
These services are:
a specified commercial television broadcasting service;
a specified commercial radio broadcasting service;
a specified subscription television service;
a specified subscription television platform;
a specified print publication;
a specified online service.
The mechanism for a legislative instrument to determine exemptions is included to provide
the flexibility to exclude services, platforms or publications that should not be captured by
the provision in the event that any anomalies arise in the operation of the provisions. The
power will also be able to be used to specifically exclude services, platforms or publications
to enable certainty to be provided in the event of doubt.
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Section 38C licences
Subsection 78GA(9) provides that section 78GA does not apply to a commercial television
broadcasting service that is provided under a licence allocated under section 38C of the Act
(i.e. services provided with the use of a satellite).
The services provided under this type of licence are excluded from the definition of news
media voice because the regularly scheduled news programs broadcast by these services
originate from other commercial television broadcasting services - the latter services are
within the scope of paragraph 78GA(1)(a).
Division 8 - Registrable news media voices
Division 8 sets out the methodology for determining the threshold at which a news media
voice is to be registered on the Register of News Media Voices (see Division 10). The
provisions in this Division aim to capture the most significant news media voices by
identifying those that have an audience reach that exceeds thirty per cent of the average
audience for commercial television evening news programs.
Section 78HA - Commercial television broadcasting services that are registrable news media
voices
Threshold audience
Subsection 78HA(1) sets out the methodology for identifying the threshold at which
commercial television broadcasting services that are news media voices (see commentary on
paragraphs 78GA(1)(a) and (b), above) are also registrable.
Where the sum of the number that is taken to be the average number of viewers of the
commercial television broadcasting service and the number that is taken to be the average
number of paying customers of an associated online service (both set out in Eligibility Rules
made by the ACMA), is greater than 30 per cent of the average metropolitan commercial
television evening news audience, then the commercial television broadcasting service will
be a registrable news media voice. In these circumstances, the associated online service will
also be a registrable news media voice (see subsection 78HF(2) below).
The expression `taken to be' the average number is used as the Eligibility Rules will, in
practice, create a methodology to estimate a viewing audience for news or current affairs. The
number will not necessarily be based on an average number of viewers for all the programs
on the commercial television broadcasting service. It is expected that the ACMA will use the
best available mechanism for estimating the audience, such as OzTam rating figures, but will
also determine the best way of making an appropriate comparison, for example by using the
average number of viewers on week nights of the most popular nightly news program for that
service over a specified period.
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This methodology can be illustrated as follows:
The number taken to be the
average number of viewers of the
commercial television broadcasting
service, as set out in the Eligibility
Rules, made by the ACMA under
proposed section+ 78HH. 30 % of the average metropolitan
If an online service is associated
with the commercial television > commercial television evening news
audience (calculated in accordance
broadcasting service and the online with section 78HG).
service is a news media voice:
the number taken to be the
average number of paying
customers of an online service
(as set out in the Eligibility
Rules, made by the ACMA
under proposed section 78HH).
The term average metropolitan commercial television evening news audience is defined in
section 78AB as having the meaning given by section 78HG (see below for discussion on this
provision). The threshold has been set at an audience greater than 30 per cent of the average
metropolitan commercial television evening news audience, as this audience was identified as
being the most commonly accessed means of acquiring news by Australians.
Example
Broadcaster X operates a commercial television broadcasting service in a regional
area.
It operates a digital channel that shows a mixture of general entertainment
programming, together with news programs.
45 000 is taken to be the average number of viewers (calculated in accordance
with the ACMA Eligibility Rules - see proposed section 78HH).
It has an associated website, with 20 000 paid subscriptions and on average
100 000 users that do not pay to access the website. This website is focused on
current affairs content but is not a news or current affairs aggregation service. The
service's content is not targeted to a special interest group.
The average metropolitan commercial television evening news audience (calculated in
accordance with proposed section 78HG, below) is 206 000 viewers. 30 per cent of
this figure is 61 800 viewers.
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Broadcaster X is a registrable news media voice because:
it is a news media voice for the purposes of subsection 78GA(1)(a), as:
- it is defined as a commercial television broadcasting service (within the
meaning of the definition in subsection 6(1) of the BSA); and
- it provides regularly scheduled news programs;
the website is a news media voice for the purposes of subsection 78GA(1)(a), as it
satisfies the criteria for being an online service, as the website:
- makes available news or current affairs content that is created by
Broadcaster X (i.e. it is not an aggregation service);
- is maintained by Broadcaster X, whose activities are principally media-related
activities (as defined in proposed section 78AB);
- contains content targeted to the general public and not directed at a special
interest group;
- has paying customers; and
Broadcaster X's viewers for the purposes of section 78HA is 65 000 (i.e. 45 000
viewers of the television service plus 20 000 online subscribers, but not the
100 000 non-paying users) which is greater than 30 per cent of the average
metropolitan commercial television evening news audience.
Exemptions
Subsection 78HA(3) provides that the Minister may, by legislative instrument, determine that
a specified commercial television broadcasting service is not a registrable news media voice
for the purposes of Part 5A. Subsection 78HA(2) provides that subsection 78HA(1) is
subject to this Ministerial power.
It is intended to only include significant news media voices on the register. The mechanism to
create exemptions by means of a legislative instrument is intended as a reserve power, to be
used if news media voices that are not significant are inadvertently caught by the provisions.
Section 78HB - Commercial radio broadcasting services that are registrable news media
voices
Proposed subsection 78HB(1) operates in a similar manner as proposed section 78HA(1) but
in relation to commercial radio broadcasting services (a term defined in section 6(1) of the
BSA) rather than commercial television broadcasting services.
The method for calculating the sum in relation to the commercial radio broadcasting service
in subsection 78HB(1) is the same as in subsection 78HA(1), although a number that is taken
to be the average number of listeners to the commercial radio broadcasting service is used
rather than the average number of viewers of the commercial television broadcasting service.
A number that is taken to be the average number of paying customers of an online service
associated with the commercial radio broadcasting service (that is also a news media voice) is
included in this calculation. In these circumstances, this associated online service must also
be a registrable news media voice (see subsection 78HF(3) below).
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The average metropolitan commercial television evening news audience is used as the
threshold number of viewers in subsection 78HB(1), for the same reasons specified above.
Subsections 78HB(2) and (3) operate in the same way as described in the commentary on
subsections 78HA(2) and (3), above.
Section 78HC - Subscription television services that are registrable news media voices
Proposed subsection 78HC(1) operates in a similar manner as proposed section 78HA(1) but
in relation to subscription television services (a term defined in proposed section 6, see
Item 15 of the Bill).
The average number of paying customers of an online service associated with the
subscription television service (that is also a news media voice) is included in this
calculation. It is noted that, in these circumstances, this associated online service must also
be a registrable news media voice (see subsection 78HF(4) below).
The average metropolitan commercial television evening news audience is used as the
threshold number of viewers in subsection 78HC(1), for the same reasons specified above.
Exemptions
Subsections 78HC(2) and (3) operate in the same way as described in the commentary on
subsections 78HA(2) and (3), above.
Section 78HD - Subscription television platforms that are registrable news media voices
Subsection 78HD(1) provides that a subscription television platform for a branded group of
subscription television services (terms defined in proposed section 6A, see Item 16 of the
Bill) is a registrable news media voice for the purposes of Part 5A where the sum of the
numbers taken to be the average number of viewers of subscription services belonging to the
branded group and associated online services exceeds 30 per cent of the average metropolitan
commercial television evening news audience.
Subsection 78HD(1) operates in a similar manner as proposed section 78HA(1) but in
relation to subscription television services that belong to a branded group of subscription
television services.
The average number of paying customers of an online service associated with the branded
group is included in this calculation, where the subscription television service and online
service are news media voices and the subscription television service belongs to the branded
group. In these circumstances, the associated online service will also be a registrable news
media voice (see subsection 78HF(6) below).
The average metropolitan commercial television evening news audience is used as the
threshold number of viewers in subsection 78HD(1), for the same reasons specified above.
Subsections 78HD(2) and (3) operate in the same way as described in the commentary on
subsections 78HA(2) and (3), above.
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Section 78HE - Print publications that are registrable news media voices
Proposed subsection 78HE(1) operates in a similar manner as proposed section 78HA(1) but
in relation to a print publication (a term defined in proposed section 78AB) rather than
commercial television broadcasting services. A number taken to be the average number of
paying customers of an online service associated with the print publication (that is also a
news media voice) is included in this calculation. In these circumstances, the associated
online service will also be a registrable news media voice (see subsection 78HF(7) below).
The average metropolitan commercial television evening news audience is used as the
threshold number of viewers in subsection 78HE(1), for the same reasons specified above.
Exemptions
Subsections 78HE(2) and (3) operate in the same way as described in the commentary on
subsections 78HA(2) and (3), above.
Section 78HF - Online services that are registrable news media voices
Proposed section 78HF includes provisions dealing with online services that are registrable
news media voices as well as with associated online services that are registrable news media
voices.
Online services - general
Subsection 78HF(1) provides that where an online service is a news media voice (within the
meaning of paragraph 78GA(1)(j) or (k)) and the number taken to be the average number of
paying customers of the online service exceeds 30 per cent of the average metropolitan
commercial television evening news audience, that online service will be a registrable news
media voice for the purpose of Part 5A.
This provision operates in a similar manner to the `online services' provisions mentioned
above (see commentary on subsections 78HA(1), 78HB(1), 78HC(1), 78HD(1) and 78HE(1)
above).
Associated online services
Subsections 78HF(2) to (7) provide that certain associated online services are registrable
news media voices. In short, an online service that is associated with another registrable
news media voice - that is, a particular commercial broadcasting service, subscription
television service, branded group of subscription television services, subscription television
platform, or print publication - will be a registrable news media voice in its own right. The
association between the online service and the other news media voice is determined in
accordance with the applicable provision in subsections 78HA(1), 78HB(1), 78HC(1),
78HD(1) or 78HE(1).
This means that a control event transaction involving an associated online service that is a
registrable news media voice will be subject to the PIMA's prior approval in accordance with
Division 3 of Part 5A.
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Exemptions
The ministerial determinations in subsections 78HF(8) and (9) operate in the same way as
described in subsections 78HA(2) and (3), above.
Section 78HG - Average metropolitan commercial television evening news audience
Subsection 78HG(1) sets out the formula for identifying the number taken to be the average
metropolitan commercial television evening news audience. This is worked out as follows:
identifying the aggregate metropolitan commercial television evening news audience
number. This number is established under Eligibility Rules made by the ACMA;
dividing this number by 15 - this takes into account the five metropolitan licence areas
(see clause 2 of Schedule 4 to the Act: the capital cities of New South Wales, Victoria,
Queensland, Western Australia, South Australia) and the three major commercial
broadcasting networks (i.e. Channel Seven, Channel Nine and Channel Ten).
Subsections 78HA(1), 78HB(1), 78HC(1), 78HD(1) and 78HE(1) (discussed above) all refer
to the average metropolitan commercial television evening news audience as the threshold for
calculating whether certain news media voices are also registrable.
Subsection 78HG(2) provides that the Eligibility Rules (made by the ACMA) for the
purposes of subsection 78HG(1) must have regard to the commercial television broadcasting
services provided in the metropolitan licence areas (as indicated above). The ACMA must
not have regard to commercial television broadcasting services provided in other licence
areas. This subsection recognises that the denominator used in the formula in
subsection 78HG(1) is based on the number of metropolitan licence areas.
Section 78HH - Eligibility Rules
Section 78HH enables the ACMA to make Eligibility Rules, which are referred to in Part 5A
and are used to identify the threshold for identifying the number that corresponds to the
average metropolitan commercial television evening news audience in proposed
section 78HG (discussed above). The Eligibility Rules must be in writing and be published
on the ACMA website (subsections 78HH(1) and 78HH(2)).
Subsection 78HH(2) declares that the Eligibility Rules are not a legislative instrument. This is
because the Rules merely set out an administrative methodology for calculating the aggregate
metropolitan commercial television evening news audience number.
Division 9 - Listed news media voices
Section 78JA - Listed news media voices
This provision specifies news media voices that are expected to be on the register of news
media voices, once registration is complete. They are separately and specifically listed to give
the controllers of those voices notice that:
they must seek the PIMA's approval for particular transactions that result in a control
event occurring during the interim period (see section 78CB); and
35
if a transaction that occurred during the interim period is not approved by the PIMA
and the PIMA is satisfied that this event substantially lessens diversity of control of
listed media voices, the PIMA will have the power to direct the controller to take
particular actions with the objective of `unwinding' the transaction (see
section 78EB);
if a transaction results in a control event during the pre-commencement period and the
PIMA is satisfied that this event substantially lessens diversity of control of listed
media voices, the PIMA will have the power to direct the controller to take particular
actions with the objective of `unwinding' the transaction (see section 78EC).
The listing of these news media voices will create a disincentive for the controllers of those
voices to bring forward transactions before commencement to avoid the operation of the new
rules.
The news media voices listed in Division 9 are influential news media voices operating in
Australia.
Division 10 - Register of News Media Voices
This Division sets out the requirements for maintaining the Register of News Media Voices.
Section 78KA - Register of News Media Voices
This provision sets out the requirements for the Register of News Media Voices (the
Register). This Register has the following components:
it is to be maintained, electronically, by the ACMA;
it will include the entries required by proposed section 78KB;
it will be made available for inspection on the internet;
it is not a legislative instrument.
The ACMA must comply with these requirements as soon as practicable or within six months
of the commencement of this section.
As the register includes entries for news media voices that meet specified requirements, it
does not have the character of a legislative instrument.
Section 78KB - Registrable news media voices to be entered in the Register etc
Subsection 78KB(1) provides that, where the ACMA is satisfied that a news media voice is a
`registrable news media voice' (in accordance with Division 8, discussed above), it must
enter that news media voice in the Register.
Subsection 78KB(2) provides that where the ACMA is satisfied that a news media voice
already included in the Register is not a registrable news media voice, it must remove that
entry from the Register.
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Section 78KC - Corrections of clerical errors or obvious defects
This provision enables the ACMA to alter the Register in circumstances where there are
clerical errors or obvious defects in the Register.
Section 78KD - Legislative instrument--further provision about the operation of the Register
This provision provides that the Minister may, by legislative instrument, set out further
details on how the Register operates.
Division 11 - Prior opinions by the ACMA
This Division provides the ACMA with the ability to provide an opinion on whether a person
is in a position to exercise control of (or, if a specific transaction took place, be in a position
to exercise control of) a print publication, online service, subscription television service or
subscription television platform. This Division is modelled on Division 10 of Part 5 of the
BSA.
Section 78LA - Requests to the ACMA to give an opinion on whether a person is in a position
to control a print publication, an online service or a subscription television service etc.
Subsection 78LA(1) provides that a person may apply to the ACMA for an opinion as to
whether the person is (or will be, following a certain transaction taking place), in a position to
exercise control of a print publication, online service, subscription television service or
subscription television platform.
Subsections 78LA(2) and (3) provide that an application must:
be in the form approved in writing by the ACMA; and
set out the applicant's opinion as to whether the applicant is/would be in a position to
exercise control of the relevant media.
Where further information is required from the applicant, the ACMA must provide the
applicant with written notice of this fact within 30 days of receiving an application
(subsection 78LA(4)).
The ACMA must provide its opinion in writing `as soon as practicable' after receiving the
application or the additional information. As this provision mirrors the provision in section
74 of the BSA, a specific timeframe has not been inserted (subsection 78LA(5)). However,
when read together with subsection 78LA(7), the ACMA has 45 days in which to provide an
opinion to the applicant, where the opinion differs from the opinion provided by the applicant
in the application.
Where the ACMA is of the opinion that a person is not or will not be in a position to exercise
control, neither the ACMA nor any other Government agency (including the PIMA) may take
any action against the person, as long as the circumstances on which the opinion is based
remain substantially the same (subsections 78LA(6) and (9)).
The ACMA may charge a fee for the provision of an opinion (subsection 78LA(8)).
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Section 78LB - Requests to the ACMA to give an opinion on whether an online service is
associated with a non-online service or a print publication etc.
Subsection 78LB(1) provides that a person may apply to the ACMA for an opinion as to
whether an online service is associated with a non-online service, a branded group of
subscription television broadcasting services or a print publication.
Subsections 78LB(2) and (3) provide that an application must:
be in the form approved in writing by the ACMA; and
set out the applicant's opinion as to whether the online service is associated with the
non-online service, branded group of subscription television broadcasting services or
print publication concerned.
Where further information is required from the applicant, the ACMA must provide the
applicant with written notice of this fact within 30 days of receiving an application
(subsection 78LB(4)).
The ACMA must provide its opinion in writing `as soon as practicable' after receiving the
application or the additional information. As this provision mirrors the provision in
section 74 of the BSA, a specific timeframe has not been inserted (subsection 78LB(5)).
However, when read together with subsection 78LB(7), the ACMA has 45 days in which to
provide an opinion to the applicant, where the opinion differs from the opinion provided by
the applicant in the application.
Where the ACMA is of the opinion that an online service is not associated with a non-online
service, a branded group of subscription television broadcasting services or a print
publication, neither the ACMA nor any other Government agency (including the PIMA) may
take any action against the person, as long as the circumstances on which the opinion is based
remain substantially the same (subsections 78LB(6) and (9)).
The ACMA may charge a fee for the provision of an opinion (subsection 78LB(8)).
Division 12 - Notification Provisions
This Division sets out notification requirements for certain registered news media voices
where there is a change in control or a change in directors. This notification must be
provided to the ACMA within specified timeframes. There are currently similar notification
requirements in Division 6 of Part 5 of the BSA. This Division includes complementary
notification requirements in relation to registered subscription television platforms,
subscription television licences, print publications and online services, for which notification
obligations do not apply under Division 6 of Part 5A, to provide an information base which
will assist the ACMA and the PIMA in performing their functions under this Part.
Subdivision A - Control of registered news media voices
This subdivision sets out the circumstances in which information must be provided when
certain news media voices become a registrable news media voice.
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Section 78MA - Requirement to notify control and directorships
This provision sets out requirements for certain service providers to notify the ACMA in
circumstances where they become registered news media voices.
Notification by subscription television platform
Subsection 78MA(1) provides that if a subscription television platform becomes a registered
news media voice, the platform must provide certain details to the ACMA within 28 days of
the platform becoming a news media voice. These details include details of the directors and
any persons who were in a position to exercise control of the platform company when it
became a registered news media voice.
The term `control' is specifically defined in subsection 6(1) of the BSA. However, the main
interpretation of the concept of `control' is in section 7 of the Act, which refers to Schedule 1
of the Act (this Schedule sets out mechanisms to be used when deciding whether a person is
in a position to exercise `control' and tracing company interests of a person).
Subsection 78MA(2) provides that the details required by subsection 78MA(1) must be
provided in the form approved, in writing, by the ACMA.
Subsections 78MA(3) and (4) provide that, if a subscription television platform is a registered
news media voice at the end of a financial year, the platform must, within three months after
the end of the financial year, give the ACMA details of persons in a position to exercise
control of the platform and the directors at the end of the financial year.
Notification by subscription television licensee
Subsections 78MA(5) and (6) operate in a similar manner as subsections 78MA(1) and (2),
but apply in relation to a subscription television service that becomes a registered media
voice.
In addition to the requirement in subsections 78MA(5) and (6), where a subscription
television service is a registered news media voice at the end of a financial year, the licensee
who provides the service must provide certain details to the ACMA within three months of
the end of the financial year, in a form approved, in writing, by the ACMA (subsections
78MA(7) and (8)). These details include details of the directors and any persons who were in
a position to exercise control of the service at the end of the financial year. New subsection
7(3) (see Item 19 of the Bill) deems a person in a position to exercise control of a
subscription television licence to be in a position to exercise control of the subscription
television service provided under the licence.
Notification by publisher of a print publication
Subsections 78MA(9) and (10) operate in a similar manner to subsections 78MA(1) and (2),
but apply in relation to the publisher of a print publication that becomes a registered media
voice.
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In addition to the requirement in subsections 78MA(9) and (10), where a print publication is a
registered news media voice at the end of a financial year, the publisher of the print
publication must provide certain details to the ACMA within three months of the end of the
financial year, in a form approved, in writing, by the ACMA (subsections 78MA(11) and
(12)). These details include details of the directors of the publishers and any persons who
were in a position to exercise control of the print publication at the end of the financial year.
Notification by provider of an online service
Subsections 78MA(13) and (14) operate in a similar manner to subsections 78MA(1) and (2),
but apply in relation to an online service that becomes a registered media voice. In addition
to the requirement in subsections 78MA(13) and (14), where an online service is a registered
news media voice at the end of a financial year, the provider of the online service must
provide certain details to the ACMA within three months of the end of the financial year, in a
form approved, in writing, by the ACMA (subsections 78MA(15) and (16)). These details
include details of the directors of the provider and any persons who were in a position to
exercise control of the online service at the end of the financial year.
Offence
Subsection 78MA(11) provides that an offence is committed by a person, in circumstances
where that person is subject to a requirement in subsections 78MA(1), (3), (5), (7), (9), (11)
(13) or (15), if the person omits to do an act (for example, does not provide the required
information to the ACMA within the required time period) and that omission breaches the
requirement in those subsections.
The term person is defined in the AI Act to include a natural person as well as a body
corporate.
The maximum punishment for a person who commits an offence under subsection 78MA(17)
is 500 penalty units (currently $85 000).
Proposed section 78MB - Requirement to notify changes in control
Notification by subscription television platform
Subsection 78MB(1) provides that, where a subscription television platform is a registered
news media voice, the platform must provide the ACMA with written notice of certain
changes in control, within five days of becoming aware that the changes have taken place.
These changes are:
that a person who was not in a position to exercise control of the platform has become in
a position to exercise control of the platform; or
a person who was in position to control the platform has ceased to be in that position.
The comments on the meaning of `control' in the context of new subsection 78MA(1) above
also apply here.
Subsection 78MB(2) provides that the details required by subsection 78MB(1) must be
provided in a form approved, in writing, by the ACMA.
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Notification by subscription television licensee
Subsections 78MB(3) and (4) operate in a similar manner to subsections 78MB(1) and (2),
but apply in relation to a subscription television service that is a registered media voice.
Notification by publisher of a print publication
Subsections 78MB(5) and (6) operate in a similar manner to subsections 78MB(1) and (2),
but apply in relation to a print publication that is a registered media voice.
Notification by provider of online service
Subsections 78MB(7) and (8) operate in a similar manner to subsections 78MB(1) and (2),
but apply in relation to an online service that is a registered media voice.
Offence
Subsection 78MB(5) operates in similar manner to subsection 78MA(11). It provides that an
offence is committed by a person in circumstances where that person is subject to a
requirement in subsections 78MB(1), (3), (5) or (7), if the person omits to do an act (for
example, does not provide the required information to the ACMA within the required time
period) and that omission breaches the requirement in those subsections.
The term person is defined in the AI Act to include a natural person as well as a body
corporate.
Section 78MC - Person who obtains control must notify the ACMA
Notification by controller of subscription television platform
Subsection 78MC(1) provides that, where a subscription television platform is a registered
news media voice, a person who comes to be in a position to exercise control of the platform
must provide the ACMA with written notice of the change in control, within five days of
becoming aware of the change.
The comments on the meaning of `control' in the context of new subsection 78MA(1) above
also apply here.
Subsection 78MC(2) provides that the details required by subsection 78MC(1) must be
provided in the form approved, in writing, by the ACMA.
Notification by controller of subscription television licensee
Subsections 78MC(3) and (4) operate in a similar manner to subsections 78MC(1) and (2),
but apply in relation to a subscription television service that is a registered news media voice.
Notification by controller of print publication
Subsections 78MC(5) and (6) operate in a similar manner to subsections 78MC(1) and (2),
but apply in relation to a print publication that is a registered news media voice.
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Notification by controller of online service
Subsections 78MC(7) and (8) operate in a similar manner to subsections 78MC(1) and (2),
but apply in relation to an online service that is a registered news media voice.
Offence
Subsection 78MC(9) operates in a similar manner to subsection 78MA(11). It provides that
an offence is committed by a person if that person is subject to a requirement in
subsections 78MC(1), (3), (5) or (7), if the person does not provide the required information
to the ACMA within the required time period.
The term person is defined in the AI Act to include a natural person as well as a body
corporate.
Subdivision B - Control of listed news media voices
This subdivision provides transitional arrangements setting out notification requirements that
apply in relation to transactions taking place during the pre-commencement period and
immediately after the commencement of certain provisions and during the interim period.
The terms pre-commencement period and interim period are defined (see commentary on
section 78A above).
Section 78MD- Notification of control events that occurred during the pre-commencement
period
Proposed section 78MD provides that a person must provide written notification to the PIMA
of a control event, within 28 days of the commencement of section 78MD. The
circumstances outlined in subsection 78MD(1) relate to transactions that occur during the
pre-commencement period that are control events in relation to one or more listed news media
voices and apply to a person is a party to the transaction or is in a position to prevent the
transactions from taking place.
If a regulated person fails to provide information to the PIMA in accordance with
subsection 78MD(2) the person commits an offence with a maximum penalty of 500 penalty
units (currently $85 000).
Section 78ME - Notification of controllers of listed news media voices etc.
Proposed section 78ME applies to the current controllers of a listed news media voice at the
time section 78ME commences.
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Notification by subscription television platform
Subsections 78ME(1) and 78ME(2) provide that a a subscription television platform that is a
listed news media voice (see subsection 78JA(7)) immediately after the commencement of
this section must provide certain written details to the ACMA. The information must be
provided in a form approved in writing by the ACMA within 28 days of the commencement
of the section (paragraph 78ME(1)(b)). These details include:
the persons (to the knowledge of the platform) who were in a position to exercise
control of the platform immediately after the commencement of section 78ME; and
the names of each director immediately after the commencement of section 78ME.
Notification by subscription television licensee
Subsections 78ME(3) and (4) provide corresponding notification requirements for a licensee
of a subscription television service that is a news media voice (see subsections 78JA(5) and
(6)).
Notification by publisher of a print publication
Subsections 78ME(5) and (6) provide corresponding notification requirements for the
publisher of a print publication that is a listed news media voice (see subsections 78JA(8) and
(9)).
Notification by provider of an online service
Subsections 78ME(7) and (8) provide corresponding notification requirements for the
provider of an online service that is a listed news media voice .
Offence
Where a person is under an obligation to provide notifications under subsections 78ME(1),
(3), (5) or (7) and the required information is not provided within those timeframes, the
requirement will be breached and the person will be subject to a maximum of 500 penalty
units (currently $85 000).
Section 78MF - Requirement to notify changes in control
Proposed section 78MF applies in respect of control changes that occur during the interim
period. A media entity that is a listed news media voice must notify the ACMA of control
changes they are aware of.
Notification by subscription television platform
Subsections 78MF(1) and (2) provide that, during the interim period, a subscription television
platform that is a listed news media voice must provide written notification to the ACMA,
within five days of becoming aware of certain events taking place. The events that need to be
notified to the ACMA are:
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a person who was not in position to exercise control of the platform becomes in a
position exercise control of the platform; or
a person who was in a position to exercise control of the platform ceases to be in that
position.
Subsection 78MF(2) provides that the details required by subsection 78MF(1) must be
provided in the form approved, in writing, by the ACMA.
Notification by subscription television licensee
Subsections 78MF(3) and (4) provide corresponding requirements for a subscription
television service that is a listed media voice.
Notification by publisher of print publication
Subsections 78MF(5) and (6) provide corresponding requirements for a print publication that
is a listed media voice.
Notification by provider of online service
Subsections 78MF(7) and (8) provide corresponding requirements for a provider of an online
service that is a listed media voice.
Offence
Subsection 78MF(9) provides that where a person is under an obligation to provide
notifications under subsections 78MF(1), (3), (5) or (7) and the required information is not
provided within those timeframes, the person commits an offence and will be subject to a
maximum of 500 penalty units (currently $85 000).
Section 78MG - Person who obtains control must notify the ACMA
Proposed section 78MG would require new controllers of a listed news media voice to
separately notify the ACMA of control changes that occur during the interim period.
Notification by controller of subscription television platform
Subsections 78MG(1) and (2) requires a person who, during the interim period, becomes in a
position to exercise control of a subscription television platform (which is also a listed news
media voice) to provide the ACMA with a written notice (in the form prescribed by the
ACMA, in writing), within five days of becoming aware of the change in control.
Notification by controller of subscription television service
Subsections 78MG(3) and (4) provide corresponding requirements for a person who, during
the interim period, becomes in a position to exercise control of a subscription television
service (which is also a listed news media voice). The person must provide the ACMA with
a written notice (in the form prescribed by the ACMA, in writing), within five days of
becoming aware of the change in control.
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Notification by controller of print publication
Subsections 78MG(5) and (6) provide corresponding requirements for a person who, during
the interim period, becomes in a position to exercise control of a print publication (which is
also a listed news media voice). The person must provide the ACMA with a written notice
(in the form prescribed by the ACMA, in writing), within five days of becoming aware of the
change in control.
Notification by controller of online service
Subsections 78MG(7) and (8) provide corresponding requirements for a person who, during
the interim period, becomes in a position to exercise control of an online service (which is
also a listed news media voice). The person must provide the ACMA with a written notice
(in the form prescribed by the ACMA, in writing), within five days of becoming aware of the
change in control.
Offence
Subsection 78MG(9) provides that where a person is under an obligation to provide
notifications under subsections 78MG(1), (3), (5) or (7) and the required information is not
provided within those timeframes, the person commits offence and will be subject to a
maximum of 500 penalty units (currently $85 000).
Subdivision C - Notification of registrability
This subdivision sets out the notification requirements for services that are registrable news
media voices both at the start of the initial Eligibility Rules completion day and after the start
of the initial Eligibility Rules completion day.
Section 78MH - Initial notification of registrability
Proposed section 78MH provides the initial notification requirements for services that are
registrable news media voices at the start of the `initial Eligibility Rules completion day'.
`Eligibility Rules' are made by the ACMA under section 78HH. These rules prescribe
various matters for the purposes of proposed Division 8 of Part 5A of the BSA. The term
`initial Eligibility Rules completion day' is defined in proposed section 78ND. This is a date
set by the ACMA, being the day after the Eligibility Rules come into force.
For each service that is a registrable news media voice at the start of the initial Eligibility
Rules completion day, the relevant licensee, platform, publisher or provider must notify the
ACMA, in writing, within 28 days after the initial Eligibility Rules completion day that the
service is a registrable news media voice.
Section 36 of the AI Act applies to this provision. In particular, the table in subsection 36(1)
of the AI Act indicates that:
where a provision `is expressed to begin at, on or with a specified day', the period of
time `includes that day' (item 4 of the table); and
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where a provision `is expressed to begin after a specified day', the period of time
`does not include that day' (item 6 of the table).
Also, subsection 36(2) of the AI Act provides that where something must be done by a
certain day and that day is a Saturday, Sunday or a holiday (defined in subsection 36(3) of the
AI Act), that thing may be done on the next day that is not a Saturday, Sunday or a holiday.
Subsections 78MH(1) to (6) provide that where the following services are registrable news
media voices as at the start of the initial Eligible Rules completion day, notification must be
provided to the ACMA within the 28 day period outlined above:
Commercial television broadcasting service;
Commercial radio broadcasting service;
Subscription television service;
Subscription television platform;
Print publication; and
Online service.
These services are discussed above - see commentary in relation to proposed section 78GA.
Offence
Subsection 78MH(7) provides that an offence is committed by a person in circumstances
where:
that person is subject to a requirement in subsection 78MH(1), (2), (3), (4), (5) or (6);
the person omits to do an act (e.g. does not provide the required notification to the
ACMA within the 28-day time period); and
that omission breaches the requirement in one of those subsections.
The term `person' is defined in the AI Act to include a natural person as well as a body
corporate.
The penalty for contravention of subsection 78MH(7) is 500 penalty units (currently
$85 000).
Section 78MJ - Subsequent notification of registrability
Proposed section 78MJ provides the subsequent notification requirements for services that
are registrable news media voices after the start of the `initial Eligibility Rules completion
day'.
For each service that is a registrable new media voice after the start of the initial Eligibility
Rules completion day, written notification must be provided to the ACMA within five days
of the licensee, platform, publisher or provider becoming aware that the service is a
registrable news media voice.
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Section 36 of the of the AI Act also applies to this provision (see commentary above). In
particular, where a provision `is expressed to begin after a specified day', the period of time
`does not include that day' (subsection 36(1) of the AI Act).
Subsections 78MJ(1) to (6) operate in the same manner as subsections 78MH(1) to (6), but in
relation to services that become registrable news media voices after the start of the initial
Eligibility Rules completion day.
Offence
Subsection 78MJ(7) operates in the same manner as subsection 78MH(7), discussed above,
but in relation to subsections 78MJ(1) to (6).
Subdivision D - Notification of certain subscription television services
This subdivision sets out the notification requirements for subscription television platforms,
in relation to certain subscription television services.
Section 78MK - Requirement to notify composition of branded group of subscription
television services
This provision applies to a branded group of subscription television services (defined in
proposed subsection 6A(1), discussed above). Where such a group exists immediately after
the commencement of this provision, the subscription television platform for that group
(defined in proposed subsection 6A(2), discussed above) must provide written details of that
group to the ACMA.
Subsection 78MK(1) provides that where a branded group of subscription television services
exists immediately after proposed section 78MK commences, the subscription television
platform must provide the ACMA with written details of the services within that group.
These details must be provided within 28 days after the commencement of proposed section
78MK (the above commentary in relation to subsections 36(2) and (3) of the AI Act also
applies here).
Subsection 78MK(2) requires the details to be provided in a form approved by the ACMA, in
writing.
Subsection 78MK(3) sets out requirements for the subscription television platform in
circumstances where there is a change in composition of a branded group of subscription
television services. Written details must be provided to the ACMA by the subscription
television platform, within five days of becoming aware of the change (the above
commentary in relation to subsections 36(2) and (3) of the of the AI Act also applies here).
Subsection 78MK(4) requires the details to be provided in a form approved by the ACMA, in
writing.
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Subsection 78MK(5) provides that an offence is committed by a person in circumstances
where:
that person is subject to a requirement in subsection 78MK(1) or (3);
the person omits to do an act (e.g. does not provide the required notification to the
ACMA within the relevant time period); and
that omission breaches the requirement in either subsection 78MK(1) or (3).
The term `person' is defined in the AI Act to include a natural person as well as a body
corporate. The penalty for contravention of subsection 78MK(7) is 500 penalty units
(currently $85 000).
Subsection 78MK(6) provides that where there are two or more subscription television
platforms for a branded group of subscription television services, the notification
requirements in this section are satisfied if notification is provided by one of those platforms
(i.e. a notification is not required from each platform for that branded group).
Subdivision E - Miscellaneous
Section 78ML - Strict Liability Offences
This section provides that an offence against Division 7 is an offence of strict liability. The
note in this provision refers to section 6.1 of the Criminal Code, which defines the term `strict
liability'.
Section 78MM - Designated infringement notice provisions
This section lists the proposed sections in Division 12 that are designated infringement notice
provisions. This is relevant for the purposes of Part 14E of the Act, which enables
infringement notices to be provided for contravention of designated infringement notice
provisions as an alternative to the institution of court proceedings.
Division 13 - Miscellaneous
Section 78NA - Online service provider
Proposed section 78NA provides rules for interpreting when a person is an online service
provider. This provision operates to narrow the class of people who are regulated by new Part
5A. Subsection 78NA(1) excludes from the term online service provider a person who merely
supplies a carriage service that enables content to be delivered or accessed. However, this
does not preclude a person from being both an online service provider and a carriage service
provider (see Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR
555; [2000] FCA 1161). This exclusion of the mere supply of carriage services ensures that
Part 5A only applies to those online services that provide content. The fact that an end-user
may pay for access to, or use of, a carriage service does not necessarily make the service
provider an online service subject to Part 5A.
Subsection 78NA(2) clarifies that a person who merely provides a billing service or fee
collection service in relation to an online service, does not provide an online service.
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Section 78NA mirrors clause 5 of Schedule 7 to the BSA to maintain consistency.
Section 78NB - When an online service is associated with a non-online service or a print
publication etc.
Proposed section 78NB outlines the circumstances when an online service will be considered
to be associated with a non-online service (defined in subsection 78NB(1)), a branded group
of subscription television services or a print publication, for the purposes of Part 5A.
An online service will be associated with an non-online service if the public would
reasonably believe the services are associated with each other, having regard to the
factors set out in subsection 78NB(2).
An online service and a branded group of subscription television services (a term
defined in proposed section 6A) will be associated, where the public would
reasonably believe they are associated with each other, having regard to the factors set
out in subsection 78NB(3).
An online service and a print publication (terms defined in proposed section 78AB)
will be associated, where the public would reasonably believe they are associated with
each other, having regard to the factors set out in subsection 78NB(4).
Section 78NC - Initial Register completion day
Subsection 78NC(1) requires the ACMA to declare, as the initial Register completion day,
the day following the day the ACMA is satisfied that all registrable news media voices have
been entered in the Register. The declaration under this provision must be made in writing.
The declaration is not a legislative instrument because it is not an instrument of a legislative
character (subsection 78NC(2)). The instrument must be published on the ACMA website
(section 78NC(3)).
The declaration the initial Register completion day may determine the end of the interim
period (see commentary on proposed section 78AB above).
Section 78ND - Initial Eligibility Rules completion day
Subsection 78ND(1) requires the ACMA to declare, as the initial Eligibility Rules completion
day for the purposes of Part 5A, the day following the day the Eligibility Rules (see proposed
section 78HH above) are in force for the purposes of the provisions listed in that subsection.
The declaration under this provision must be made in writing. Although this declaration is not
a legislative instrument, the ACMA must publish a copy of the instrument on its website
(subsections 78ND(2) and (3)).
The initial Eligibility Rules completion day is relevant for the purposes of the initial
notification of registrability (see section 78MH) and the subsequent notification of
registrability (see section 78MJ).
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Section 78NE - Part has effect notwithstanding Competition and Consumer Act
This provision makes clear that the Part has effect notwithstanding the Competition and
Consumer Act 2010. This means that this Part of the BSA has an independent operation from
the Competition and Consumer Act. For example, a transaction may be prohibited under this
Part because it results in a substantial lessening of diversity of control of registered news
media voices even though it does not constitute a substantial lessening of competition for the
purposes of the Competition and Consumer Act.
Item 21 - Section 205PA
Item 22 - Section 205Q
These two items insert a paragraph in the outline of Part 14C of the BSA (in section 205PA)
and insert a reference to proposed sections 78BE and 78BF in section 205Q, to provide the
Federal Court with the ability to grant injunctions in relation to transactions that are
prohibited under Part 5A.
Proposed section 78BE prohibits transactions that result in a control event occurring in
relation to one or more registered news media voices. Proposed section 78BF prohibits
transactions that result in a control event occurring in relation to one or more listed news
media voices.
Item 23 - Section 205ZA
Item 24 - Paragraph 205ZA(a)
Item 25 - At the end of section 205ZA
Part 14E of the BSA sets up a system of infringement notices for contraventions of
designated infringement notice provisions as an alternative to the institution of court
proceedings. These items amend section 205ZA to provide the penalty for an infringement
notice given a subscription television broadcasting platform, to the publisher of a print
publication or the provider of an online service. New designated infringement notice
provisions are listed in proposed section 78MM. The level of penalty is consistent with the
level currently applying to an infringement notice given to a commercial or subscription
television broadcasting licensee.
Item 26 - Subsection 214(1)
Subsection 214(1) of the BSA provides that where there is continuing offence under the BSA,
charges against the same person may be joined in the same information, complaint or
summons if the charges are founded on the same facts or form or are part of a series of
offences of the same or a similar character.
This item amends subsection 214(1) to apply this rule to the continuing offence applying to a
contravention of a direction made under proposed section 78EA, 78EB or 78EC.
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Item 27 - Subclause 1(1) of Schedule 1
Item 28 - Subclause 1(1) of Schedule 1
Item 29 - Subclause 1(1) of Schedule 1
Item 30 - Subclause 1(1) of Schedule 1
Item 31 - Subclause 1(1) of Schedule 1
Item 32 - Subclause 1(1) of Schedule 1
Item 33 - Subclause 1(2) of Schedule 1
Item 34 - After clause 1 of Schedule 1
Clause 1 of Schedule 1 to the BSA contains a legislative essay about the concept of `control',
and the uncertainty inherent in the interpretation and application of the BSA's control rules.
The essay notes the ACMA's monitoring and investigatory functions, and the capacity to
issue binding opinions, which are conducive to offering greater regulatory certainty.
These items make a series of minor textual and cross-referencing amendments to the essay to
reflect the measures in the bill that establish control rules for subscription television, print
publications and online services for the purpose of the new Part 5A.
Item 35 - After paragraph 2(1)(c) of Schedule 1
Clause 2 of Schedule 1 to the BSA sets out criteria for determining when a person is in a
position to exercise control of a licence or company. This item inserts in clause 2 a further
criterion for determining when a person, whether alone or with an associate, is in a position to
exercise control of a subscription television platform company. These amendments are not
exhaustive of the control scenarios for a subscription television platform company. This is
because the control scenario in paragraph 2(1)(c) would also apply - that is, a person who can
control a significant proportion of the operations of a non-licensee company - such as the
subscription platform company - is a controller of that company for the purposes of
Schedule 1 to the BSA.
The additional criterion in new paragraph 2(1)(ca) provides that in the case of a company that
is a subscription television platform for a branded group of subscription television services, a
person is in a position to exercise control of the company if the person is in a position, either
alone or together with an associate, to exercise control of the selection of the subscription
television services included in the branded group.
Item 36 - At the end of clause 3 of Schedule 1
Clause 3 of Schedule 1 to the Act sets out criteria for determining when a person is in a
position to exercise control over a newspaper. This item would add a new subclause 3(4) to
make clear that more than one person can exercise control of a newspaper. The addition of
this provision ensures drafting consistency with clause 2 (see subclause 2(4) of the Schedule).
Item 37 - After clause 3 of Schedule 1
This item inserts, after clause 3, additional clauses for determining when a person is in a
position to exercise control of a print publication that is not a newspaper (new clause 3A),
and when a person is in a position to exercise control of an online service (new clause 3B).
The extra clauses are needed for the purpose of new Part 5A of the Act, which deals with
news media diversity.
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The criteria for determining when a person is in a position to exercise control of a print
publication are materially the same as the criteria for determining control positions for a
newspaper. More than one person can exercise control of a print publication at any time.
The criteria for determining when a person is in a position to exercise control of an online
service are materially the same as the criteria for determining control positions for a
newspaper or a print publication. More than one person can be in a position to exercise
control of an online service at any time.
Item 38 - Subclause 4(1) of Schedule 1
Item 39 - After subclause 4(3) of Schedule 1
Item 40 - Subclause 4(4) of Schedule 1 (after paragraph (c) of the definition of media
company)
Clause 4 of Schedule 1 to the Act contains special provisions for authorised lenders (as
defined in subclause 4(4)). Subclause 4(1) operates to discount particular loan agreements (as
defined in subclause 4(4)) for determining if a person (being the authorised lender or a
controller of such a lender) is in a position to control a media company (as defined in
subclause 4(4)), or licence or newspaper that is controlled by a media company.
Subclauses 4(2) and 4(3) create exceptions to the general rule subclause 4(1) - in short, a
lender, or controller of a lender, will be in a position to exercise control of, respectively, a
licence or a newspaper in the specified circumstances.
Item 38 make minor textual amendments to reflect other measures in the bill that establish
control rules for subscription television, print publications and online services.
Item 39 inserts additional exceptions to the general rule in subclause 4(1), in order to deal
with the specified circumstances in which a lender, or a controller of a lender, is in a position
to exercise control of a print publication (new subclause 4(3A)) or an online service (new
subclause 4(3B)).
The specified circumstances for control of a print publication are materially the same as those
set out in subclause 4(3) regarding a lender's control of a newspaper.
The specified circumstances for control of an online service are substantially similar to those
set out in subclause 4(3) regarding a lender's control of a newspaper.
Item 40 inserts additional paragraphs into the definition of media company. The extra
paragraphs mean that a media company includes a company that publishes a print publication
or a company that provides an online service, which complements the amendments made by
Items 38 and 39. In addition, the inclusion of a subscription television platform company in
the media company definition ensures that clause 4 applies to loan agreements between a
subscription television platform company and an authorised lender.
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