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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Broadcasting Services Amendment (Public Interest Test) Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Ludlam)
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BROADCASTING SERVICES AMENDMENT (PUBLIC INTEREST TEST)
BILL 2012
Outline
The Bill introduces a public interest test for changes in control of nationally significant media
operations. Media operations include holders of broadcast and subscription television and
radio licences and owners of newspapers. The Australian Communications and Media
Authority (ACMA) will apply the public interest test.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives Royal Assent
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
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Schedule 1 - Amendments to the Broadcasting Services Act 1992
Item 1
4. Item 1 inserts a new Part 5A in the Broadcasting Services Act 1992 establishing a public
interest test for changes in control of media operations of national significance.
5. Section 78A defines certain terms. "Control" of a media operation is defined by reference
to Schedule 1 of the Broadcasting Services Act 1992 or where a person has at least a 10%
share in a media operation corporation and appoints a director to the board or in the event
of a takeover bid under Chapter 6 of the Corporations Act. Any of these events can be a
trigger for ACMA to apply the public interest test.
6. "Media operation" includes commercial television and radio licences and subscription
service licences and newspapers.
7. A "media operation of national significance" means a media operation that has control
over its content, an audience within Australia of over 500 000 persons per month and a
minimum revenue of $50 million per year derived in Australia. The definition is a
reflection of the recommendation from the Convergence Review 2012.
8. Section 78B provides an additional constitutional basis for newspapers to be regulated
under new Part 5A where the publisher of the newspaper is a constitutional corporation or
the circulation of the newspaper is in 2 or more states, in a Territory or in a foreign
country.
9. Section 78C provides that a person, who is aware that the person has become, on or after
28 June 2012, in a position to exercise control of a media operation of national
significance, must notify ACMA of that position. Notification must be given within 14
days after the commencement of the Bill, if the person becomes aware of the position
before commencement, and within 14 days after the person becomes aware of the
position, if the person becomes aware at or after commencement. The Bill was introduced
into the Senate on 28 June 2012 and is intended to apply to changes of control from the
date of its introduction.
10. It is an offence if a person does not comply with the requirement to inform ACMA of the
person's position. The offence attracts a maximum penalty of 500 penalty units.
11. Section 78D requires ACMA to determine whether a person's position to exercise control
of a media operation of national significance is in the public interest, and empowers
ACMA to make remedial directions if it determines that such a position is not in the
public interest. The section applies if ACMA becomes aware that a person has become,
on or after 28 June 2012, in a position to exercise control, whether or not by notice being
given under section 78C. A remedial direction is a direction to a person given for the
purpose of ensuring that the controller is no longer in a position to exercise control of the
media operation, and the power to give a remedial direction is similar to the powers of
ACMA under Division 5A of Part 5 of the Act in relation to media diversity. A remedial
direction may include a direction requiring the disposal of shares or interests, the
restraining of the exercise of any rights attached to shares or interests, prohibiting or
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deferring the payment of any sums due to a person in respect of shares or interests, or
requiring any exercise of rights attached to shares or interests to be disregarded.
12. Section 78D also provides that the functions under the new Part 5A are a broadcasting,
content and datacasting function for the purposes of Part 13 of the Act. This will allow
the information gathering powers under Part 13 to apply for the purposes of new Part 5A,
including holding public hearings and taking submissions.
13. Section 78E provides for the matters to be taken into account by ACMA in applying the
public interest test. These matters are to include whether that position will diminish the
diversity of unique owners providing general content services as well as news and
commentary at a national level; whether that position will diminish the range of content
services at a national level; whether there is a significant risk that, as a result of that
position, the media operation will not comply with its obligations under the Act or any
other law of the Commonwealth; the likely impact of that position on editorial
independence for the media operation; the likely impact of that position on free
expression of opinion; the likely impact of that position on the fair and accurate
presentation of news; and any other matter that ACMA considers relevant.
14. ACMA may make guidelines relating to its application of the public interest test.
15. Section 78F provides for ACMA to grant an extension of time for a person to comply
with a remedial direction. A person must apply to ACMA in writing for an extension.
ACMA can grant an extension if it is of the opinion it is appropriate in all the
circumstances and can request further information in writing. The period of an extension
can be no more than 3 months and there can be no more than one extension. ACMA is to
have regard to the endeavours the applicant has made to comply with the direction and
any difficulties in complying with it, in making a decision about an extension of time to
comply.
16. If ACMA does not make a decision on an extension within 45 days after receiving an
application or further information as requested, an extension of 3 months is deemed to
have been granted. A decision to refuse an extension of time to comply with a direction
must be given in writing to the applicant. These provisions are similar to provisions that
ACMA can apply in relation to its media diversity powers in Part 5 of the Act.
17. Section 78G provides for an offence if a person contravenes a direction given under
section 78D. The maximum penalty is 20 000 penalty units.
18. Section 78H provides for a civil penalty if a person does not comply with a direction
under section 78D. Under subsection 205F(4) of the Act, the maximum penalty is 20,000
penalty units.
Item 2
19. Item 2 provides for a consequential amendment to subsection 204(1) of the Act, to ensure
that a refusal to grant an extension of time to comply with a remedial direction is
reviewable by the Administrative Appeals Tribunal.
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Item 3
20. Item 3 provides that, to avoid doubt, section 78C (which sets out the requirement for a
person to notify ACMA if the person becomes in a position to exercise control of a media
operation of national significance) applies on and after the commencement of the item,
whether the person becomes aware of that position before, at or after commencement. It
also provides that section 78D, (which sets out the requirement for ACMA to determine
whether a person's position to exercise control of a media operation of national
significance is in the public interest) applies on and after the commencement of the item,
whether ACMA becomes aware of that position before, at or after commencement.
21. The intent of the Bill is that the public interest test can be applied by ACMA to changes
in control of nationally significant media operations that have occurred on or after 28
June 2012, the day the bill was introduced into the Parliament, even if this is before the
commencement date.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Public interest test for changes in control of nationally significant media operations
1.1 The Broadcasting Services Amendment (Public Interest Test) Bill 2012 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
1.2 The purpose of the bill is to introduce a public interest test for changes in
control of nationally significant media operations.
Human rights implications
1.3 This bill does not engage any of the applicable rights or freedoms.
Conclusion
1.4 This bill is compatible with human rights as it does not raise any human rights
issues.
Senator Ludlam
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