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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NEWS MEDIA (SELF-REGULATION) BILL 2013
NEWS MEDIA (SELF-REGULATION) (CONSEQUENTIAL AMENDMENTS)
BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
NEWS MEDIA (SELF-REGULATION) BILL 2013
NEWS MEDIA (SELF-REGULATION) (CONSEQUENTIAL AMENDMENTS)
BILL 2013
OUTLINE
The News Media (Self-regulation) Bill 2013 and the News Media (Self-regulation)
(Consequential Amendments) Bill 2013 together with the Public Interest Media Advocate
Bill 2013, the Broadcasting Legislation Amendment (Convergence Review and Other
Measures) Bill 2013, the Broadcasting Legislation Amendment (News Media Diversity)
Bill 2013 and the Television Licence Fees Amendment 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 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 the new Part 5A of the Broadcasting Services Act 1992.
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 Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 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 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 two Bills that are the subject of this Explanatory Memorandum are as follows:
the News Media (Self-regulation) Bill 2013 (the Self-regulation Bill); and
the News Media (Self-regulation) (Consequential Amendments) Bill 2013 (the
Consequential Amendments Bill).
The purpose of the proposed Bills is to improve the effectiveness and the responsiveness
of self-regulatory arrangements for print and online news media. The Bills will do this by
promoting compliance by significant providers of print and online news and current
affairs with standards of practice, and by encouraging effective complaints handling
1
arrangements to respond to complaints regarding breaches of those standards. The Bills
will promote adherence to standards of practice in relation to matters such as fairness,
accuracy and privacy.
News Media (Self-regulation) Bill 2013
The Self-regulation Bill allows the Public Interest Media Advocate to declare a specified
body corporate to be a `news media self-regulation body'. In practice, a specified body is
expected to be a self-regulatory industry body. The Public Interest Media Advocate would
be appointed under the proposed Public Interest Media Advocate Act 2013.
The Public Interest Media Advocate must not make a declaration unless the body
corporate meets a number of basic eligibility criteria, including a requirement that it be a
registered company limited by guarantee; and a requirement that it has a binding `news
media self-regulation scheme' applying standards to its `news media organisation
members' in relation to their `news or current affairs activities'.
In deciding whether to declare that a particular body is a `news media self-regulation
body', the Public Interest Media Advocate must have regard to a number of matters
including the extent to which the body corporate has arrangements in place to deal
effectively with complaints; and the extent to which the body corporate's standards deal
with privacy, fairness, accuracy and other matters relating to the professional conduct of
journalism.
A specified `news media organisation' will only continue to qualify for the `Journalism'
exemption from the privacy obligations imposed under the Privacy Act 1988 (the Privacy
Act), if it is a member of a declared `news media self-regulation body' and has not had its
rights as a member suspended (see below under the heading `News Media (Self-
regulation) (Consequential Amendments) Bill').
A `news media organisation' is defined by reference to its `news or current affairs
activities'. A number of activities are excluded, including activities relating to material
disseminated by a broadcasting or datacasting service. A small business operator (within
the meaning of the Privacy Act) is also excluded from the definition of `news media
organisation'.
Membership of a `news media self-regulation body' would be voluntary. However, as
noted above, a `news media organisation' (as defined), would lose the Privacy Act
exemption if it failed to become a member by a specified date.
News Media (Self-regulation) (Consequential Amendments) Bill 2013
The Consequential Amendments Bill amends subsection 7B(4) of the Privacy Act so that
the subsection only applies to a `news media organisation', if the organisation is a
member of a `news media self-regulation body' and its rights as a member of that body
have not been suspended. `News media organisation' and `news media self-regulation
body' have the same meaning as in the News Media (Self-regulation) Act 2013.
Subsection 7B(4) currently provides that an act done or a practice engaged in by a media
organisation is exempt for the purposes of paragraph 7(1)(ee), if it is done in the course of
2
journalism and at a time when the organisation is publicly committed to published privacy
standards. This means in effect that the activities of `news media organisations' that
currently qualify for the exemption are not subject to the Privacy Act provisions that
relate to the obtaining, keeping and disclosing of personal information.
Under the proposed amendments, a `news media organisation' that is not a member of a
`news media self-regulation body' or has had its membership suspended, would no longer
qualify for the exemption and would, therefore, be subject to the provisions of the Privacy
Act.
This means that the Privacy Act provisions relating to complaints by individuals and
oversight by the Office of the Australian Information Commissioner, would apply to such
organisations.
FINANCIAL IMPACT STATEMENT
The reforms in the Self-regulation Bill are not expected to have any direct financial
impact on the Government.
The amendments in the Consequential Amendments Bill are not expected to have any
direct financial impact on the Government.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
News Media (Self-regulation) Bill 2013
The Self-regulation 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 (the Act).
Overview of the Self-regulation Bill
The Self-regulation Bill is intended to promote compliance by significant providers of
print and online news and current affairs with minimum standards both in the practice of
journalism, and in the effectiveness of complaints handling arrangements. The Self-
regulation Bill will operate to encourage news media organisations to become part of a
`news media self-regulation body'.
The Self-regulation Bill will enable the Public Interest Media Advocate to declare that a
specified body corporate is a news media self-regulation body. The Public Interest Media
Advocate would be appointed under the proposed Public Interest Media Advocate Act
2013. The Public Interest Media Advocate must not make a declaration unless the body
meets a number of basic eligibility criteria, including a requirement that it be a registered
company limited by guarantee; and a requirement that it has a binding `news media self-
regulation scheme' applying standards to its `news media organisation members' in
relation to their `news or current affairs activities'.
In deciding whether to declare that a particular body corporate is a `news media self-
regulation body', the Public Interest Media Advocate must also have regard to a number
of matters including the extent to which the body corporate has arrangements in place to
deal effectively with complaints; and the extent to which the body's standards deal with
privacy, fairness, accuracy and other matters relating to the professional conduct of
journalism.
Under proposed amendments to the Privacy Act 1988 (the Privacy Act) contained in the
Consequential Amendments Bill, a specified `news media organisation' will only
continue to qualify for the `journalism' exemption from the `privacy' obligations imposed
under the Privacy Act, if it is a member of a declared `news media self-regulation body'.
By being a member of a declared news media self-regulation body, a news media
organisation will retain the exemption from the National Privacy Principles and other
provisions of the Privacy Act that it currently enjoys under subsection 7B(4) of the
Privacy Act but will commit to observance of standards framed more specifically for the
print and online media through its membership of a news media self-regulation body
declared by the Public Interest Media Advocate. This approach of linking membership of
a recognised body to certain privileges of journalism is a simple and transparent
4
mechanism to promote effective and independent self-regulation of print and online news
media organisations.
Human rights implications
The Self-regulation Bill engages the following human rights:
the prohibition on arbitrary or unlawful interferences with privacy
the right to freedom of expression
the right to freedom of association, and
the right to take part in public affairs.
Prohibition on arbitrary or unlawful interferences with privacy
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides
that no-one shall be subjected to arbitrary or unlawful interference with their privacy.
This includes a right to secrecy of personal information. Collecting, using, storing,
disclosing or publishing personal information amounts to an interference with privacy.
The protection from arbitrary and unlawful interference with privacy may be subject to
permissible limitations where such limitations are authorised by law and are not arbitrary.
In order for an interference with privacy not to be arbitrary, the interference must be in
accordance with the provisions, aims and objectives of the ICCPR and reasonable in the
particular circumstances. The United Nations Human Rights Committee has interpreted
the requirement of `reasonableness' to imply that any interference with privacy must be
proportional to the end sought and be necessary in the circumstances of any given case.
Regarding the engagement of the right to privacy in relation to the operation of a declared
news media self-regulation body, there is some possibility--though it is likely to be
remote--that a news media self-regulation body may give too great an emphasis to
freedom of expression through not having regard to the need to protect against arbitrary
and unlawful interferences with privacy, or alternatively, would limit the freedom of
expression by emphasising the right to privacy.
This issue is addressed in the Self-regulation Bill by requiring the Public Interest Media
Advocate, in making or revoking a declaration in relation to a news media self-regulation
body, to have regard to the need for freedom of expression and the need to protect
individual privacy. Further, in having regard to the need to protect individual privacy, the
Self-regulation Bill requires the Public Interest Media Advocate to consult publicly and
with the Privacy Commissioner prior to making or revoking a declaration in relation to a
news media self-regulation body.
Accordingly, any limitations placed on privacy are reasonable, necessary and
proportionate to the legitimate aim of ensuring that the self-regulatory arrangements will
operate effectively, appropriately, and in a way that ensures media standards are
recognised and adhered to.
5
In addition, the News Media Self-regulation Bill provides for a statutory review of the
operation of the proposed News Media Self-regulation Act. A measure is included so that
a report of the review must not contain any information that is likely to enable the
identification of an individual unless the individual has consented to the information being
contained in the report. This is an important safeguard against arbitrary interferences with
privacy under Article 17 of the ICCPR.
The Self-regulation Bill is therefore consistent with Article 17 of the ICCPR and will
balance the rights of the news media to publish, and the rights of individuals in relation to
privacy and reputation.
Right to freedom of association
The Self-regulation Bill establishes a scheme that encourages specified news media
organisations to become members of a declared news media self-regulation body.
However, membership of the news media self-regulation body remains voluntary under
the scheme. Accordingly, the Self-regulation Bill does not limit the right to freedom of
association.
Right to freedom of expression
Article 19 of the ICCPR provides that everyone has the right to freedom of expression,
including the freedom to seek, receive and impart information and ideas. To the extent
that specified news media organisations will not have exemptions from the Privacy Act
available to them unless they are members of a declared news media self-regulation body,
the Self-regulation Bill will also engage Article 19 of the ICCPR.
Under Article 19, any limitations placed on the right to freedom of expression must be
provided by law and necessary to respect the rights or reputations of others or protect
national security, public order, or public health and morals. The relevant provisions of the
Self-regulation Bill are consistent with Article 19 of the ICCPR as they are provided for
by law and are necessary for respecting the rights or reputations of others.
The measures contained in the Self-regulation Bill will promote news media
organisations' respect for the privacy of individuals through effective and transparent self-
regulation which includes mechanisms to achieve compliance with appropriate standards
of practice and opportunities for individuals to have concerns addressed. The Self-
regulation Bill is therefore consistent with Article 19 of the ICCPR and will balance the
rights of the news media to publish, and the rights of individuals in relation to privacy and
reputation.
Right to take part in public affairs
Article 25 of the ICCPR provides that everyone has the right to take part in the conduct of
public affairs. According to the United Nations Human Rights Committee, the free
communication of information and ideas about public and political issues between
citizens, candidates and elected representatives is essential to the enjoyment of this right
and this implies a free press and other media able to comment on public issues without
censorship or restraint and to inform public opinion.
6
It may be arguable that the application of the Privacy Act provisions to news media
organisations that do not join a news media self-regulation body (or to those organisations
that were suspended or expelled from a news media self-regulation body), could
potentially be construed as a `restraint' on the free press to comment on public issues and
to inform public opinion, such that the Self-regulation Bill engages Article 25 of the
ICCPR.
The Privacy Act provisions merely set transparent, reasonable and generally applied and
accepted standards in relation to the handling of personal information. It should also be
noted that news media organisations will have the alternative option of being subject to
the privacy standards formulated by the news media self-regulation body, and that in
declaring such a body, the Public Interest Media Advocate must have regard to the need
for freedom of expression and the need to protect individual privacy.
There may also be a possibility, albeit potentially remote, that a news media self-
regulation body may limit the freedom of the press to comment on public issues by
emphasising the right to privacy.
However, if a circumstance were to arise where the right to freedom of expression
(including the right to take part in public affairs) or the right to privacy were
impermissibly limited, the Public Interest Media Advocate could revoke the news media
self-regulation body's declaration in order to ensure the protection and fulfilment of these
rights under the ICCPR. In revoking a declaration, the Public Interest Media Advocate
must have regard to the need for freedom of expression and the need to protect individual
privacy and also provide an opportunity for affected news media organisations to
participate in an alternate news media self-regulatory body.
Conclusion
The Self-regulation Bill is compatible with human rights and freedoms because it will
promote the balance between freedom of the press and the rights of individuals.
7
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
News Media (Self-regulation) (Consequential Amendments) Bill 2013
The Consequential Amendments 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 (the Act).
Overview of the Consequential Amendments Bill
The Consequential Amendments Bill is intended to promote compliance by significant
providers of print and online news and current affairs with minimum standards both in the
practice of journalism, and in the effectiveness of complaints handling arrangements. The
Consequential Amendments Bill amends the Privacy Act 1988 (the Privacy Act), so that a
specified `news media organisation' (within the meaning of the proposed News Media
(Self-regulation) Act 2013) will only continue to qualify for the `journalism' exemption
from the `privacy' obligations imposed under the Privacy Act, if it is a member of a
declared `news media self-regulation body' (within the meaning of the proposed Self-
regulation Act).
The proposed Self-regulation Act will enable the Public Interest Media Advocate to
declare that a specified body corporate is a news media self-regulation body. The Public
Interest Media Advocate would be appointed under the proposed Public Interest Media
Advocate Act 2013. The Public Interest Media Advocate must not make a declaration
unless the body meets a number of basic eligibility criteria, including a requirement that it
be a registered company limited by guarantee; and a requirement that it has a binding
`news media self-regulation scheme' applying standards to its `news media organisation
members' in relation to their `news or current affairs activities'.
In deciding whether to declare that a particular body corporate is a `news media self-
regulation body', the Public Interest Media Advocate must also have regard to a number
of matters including the extent to which the body corporate has arrangements in place to
deal effectively with complaints; and the extent to which the body's standards deal with
privacy, fairness, accuracy and other matters relating to the professional conduct of
journalism.
By being a member of a declared news media self-regulation body, a news media
organisation will retain the exemption from the National Privacy Principles and other
provisions of the Privacy Act that it currently enjoys under subsection 7B(4) of the
Privacy Act but will commit to observance of standards framed more specifically for the
print and online media through its membership of a news media self-regulation body
declared by the Public Interest Media Advocate. This approach of linking membership of
a recognised body to certain privileges of journalism is a simple and transparent
mechanism to promote effective and independent self-regulation of print and online news
media organisations.
8
Human rights implications
The Consequential Amendments Bill engages the following human rights:
the prohibition on arbitrary or unlawful interferences with privacy
the right to freedom of expression
the right to freedom of association, and
the right to take part in public affairs.
Prohibition on arbitrary or unlawful interferences with privacy
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides
that no-one shall be subjected to arbitrary or unlawful interference with their privacy.
This includes a right to secrecy of personal information. Collecting, using, storing,
disclosing or publishing personal information amounts to an interference with privacy.
The protection from arbitrary and unlawful interference with privacy may be subject to
permissible limitations where such limitations are authorised by law and are not arbitrary.
In order for an interference with privacy not to be arbitrary, the interference must be in
accordance with the provisions, aims and objectives of the ICCPR and reasonable in the
particular circumstances. The United Nations Human Rights Committee has interpreted
the requirement of `reasonableness' to imply that any interference with privacy must be
proportional to the end sought and be necessary in the circumstances of any given case.
Regarding the engagement of the right to privacy in relation to making the application of
the journalism exemption contingent upon membership of a declared news media self-
regulation body, there is some possibility--though it is likely to be remote--that a news
media self-regulation body may give too great an emphasis to freedom of expression
through not having regard to the need to protect against arbitrary and unlawful
interferences with privacy, or alternatively, would limit the freedom of expression by
emphasising the right to privacy.
This issue is addressed in the proposed Self-regulation Act by requiring the Public Interest
Media Advocate in making or revoking a declaration in relation to a news media self-
regulation body, to have regard to the need for freedom of expression and the need to
protect individual privacy. Further, in having regard to the need to protect individual
privacy, the proposed Self-regulation Act requires the Public Interest Media Advocate to
consult publicly and with the Privacy Commissioner prior to making or revoking a
declaration in relation to a news media self-regulation body.
Accordingly, any limitations placed on privacy are reasonable, necessary and
proportionate to the legitimate aim of ensuring that the self-regulatory arrangements will
operate effectively, appropriately, and in a way that ensures media standards are
recognised and adhered to.
9
The Consequential Amendments Bill is therefore consistent with Article 17 of the ICCPR
and will balance the rights of the news media to publish, and the rights of individuals in
relation to privacy and reputation.
Right to freedom of association
The Consequential Amendments Bill, together with the proposed Self-regulation Act,
establishes a scheme that encourages specified news media organisations to become
members of a declared news media self-regulation body. However, membership of the
news media self-regulation body remains voluntary under the scheme. Accordingly, the
Consequential Amendments Bill does not limit the right to freedom of association.
Right to freedom of expression
Article 19 of the ICCPR provides that everyone has the right to freedom of expression,
including the freedom to seek, receive and impart information and ideas. To the extent
that specified news media organisations will not have exemptions from the Privacy Act
available to them unless they are members of a declared news media self-regulation body,
the Consequential Amendments Bill will also engage Article 19 of the ICCPR.
Under Article 19, any limitations placed on the right to freedom of expression must be
provided by law and necessary to respect the rights or reputations of others or protect
national security, public order, or public health and morals. The relevant provisions of the
Consequential Amendments Bill are consistent with Article 19 of the ICCPR as they are
provided for by law and are necessary for respecting the rights or reputations of others.
The measures contained in the Consequential Amendments Bill together with the
proposed Self-regulation Act will promote news media organisations' respect for the
privacy of individuals through effective and transparent self-regulation which includes
mechanisms to achieve compliance with appropriate standards of practice and
opportunities for individuals to have concerns addressed. The Consequential
Amendments Bill is therefore consistent with Article 19 of the ICCPR and will balance
the rights of the news media to publish, and the rights of individuals in relation to privacy
and reputation.
Right to take part in public affairs
Article 25 of the ICCPR provides that everyone has the right to take part in the conduct of
public affairs. According to the UN Human Rights Committee, the free communication
of information and ideas about public and political issues between citizens, candidates and
elected representatives is essential to the enjoyment of this right and this implies a free
press and other media able to comment on public issues without censorship or restraint
and to inform public opinion.
It may be arguable that the application of the Privacy Act provisions to news media
organisations that do not join a news media self-regulation body (or to those organisations
that were suspended or expelled from a news media self-regulation body), could
potentially be construed as a `restraint' on the free press to comment on public issues and
to inform public opinion, such that the Consequential Amendments Bill engages Article
25 of the ICCPR.
10
The Privacy Act provisions merely set transparent, reasonable and generally applied and
accepted standards in relation to the handling of personal information. It should also be
noted that news media organisations will have the alternative option of being subject to
the privacy standards formulated by the news media self-regulation body, and that in
declaring such a body, the Public Interest Media Advocate must have regard to the need
for freedom of expression and the need to protect individual privacy.
There may also be a possibility, albeit potentially remote, that a news media self-
regulation body may limit the freedom of the press to comment on public issues by
emphasising the right to privacy.
However, if a circumstance were to arise where the right to freedom of expression
(including the right to take part in public affairs) or the right to privacy were
impermissibly limited, the Public Interest Media Advocate could revoke the news media
self-regulation body's declaration in order to ensure the protection and fulfilment of these
rights under the ICCPR. In revoking a declaration, the Public Interest Media Advocate
must have regard to the need for freedom of expression and the need to protect individual
privacy and also provide an opportunity for affected news media organisations to
participate in an alternate news media self-regulatory body.
Conclusion
The Consequential Amendments Bill is compatible with human rights and freedoms
because it will promote the balance between freedom of the press and the rights of
individuals.
11
NEWS MEDIA (SELF-REGULATION) BILL 2013
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title for the Act. When enacted, the
Self-regulation Bill is to be cited as the News Media (Self-regulation) Act 2013.
Clause 2 - Commencement
Clause 2 sets out when the provisions of the Act commence. The provisions specified in
column 1 of the table will commence, or will be taken to have commenced, on the day
specified in accordance with column 2 of the table.
The covering clauses (sections 1 and 2) and anything not elsewhere covered by the table
commence on the day the Act receives the Royal Assent.
Clauses 3 to 16 commence on the latest of the day after the Act receives the Royal Assent;
the day the News Media (Self-regulation) (Consequential Amendments) Act 2013 receives
the Royal Assent; and the day section 3 of the proposed Public Interest Media Advocate
Act 2013 commences. However, sections 3 to 16 do not commence at all if the proposed
News Media (Self-regulation) (Consequential Amendments) Act 2013 does not receive the
Royal Assent or section 3 of the proposed Public Interest Media Advocate Act 2013 does
not commence.
Clause 3 - Simplified outline
Clause 3 provides a simplified outline of the Self-regulation Bill and the associated
provisions of the Privacy Act. The note to clause 3 explains that the `Public Interest
Media Advocate' referred to in the simplified outline is appointed under the Public
Interest Media Advocate Act 2013.
Clause 4 - Definitions
Clause 4 sets out definitions of key terms used in the Self-regulation Bill.
A `news media organisation' to which the Self-regulation Bill applies, must be a
corporation for the purposes of section 51(xx) of the Constitution. However, a small
business operator, within the meaning of the Privacy Act, is excluded from the definition.
A `news media organisation' is also defined by reference to its activities. These must be
wholly or principally `media-related activities' and consist of, or include, `news or current
affairs activities'.
The term `news or current affairs activities' has the meaning given by clause 5.
12
Other terms are explained in more detail in the notes on the clauses of the Self-regulation
Bill which use the term.
Clause 5 - News or current affairs activities
Clause 5 defines `news or current affairs activities' for the purposes of the proposed Self-
regulation Act.
Subclause 5(1) sets out the types of activities in relation to specified material that are
`news or current affairs activities'. The activities, as set out in paragraphs 5(1)(a) to (c),
are:
(a) the collection; or
(b) the preparation for dissemination; or
(c) the dissemination;
of specified material for the purpose of making it available to the public.
The relevant material as specified in paragraphs 5(1)(d) and (e) is material having the
character of news or current affairs; and material consisting of commentary or opinion on,
or analysis of, news or current affairs.
Subclause 5(2) provides exceptions to the definition of `news or current affairs activities'.
Accordingly, subclause 5(1) is expressed not to apply in the circumstances set out in
paragraphs 5(2)(a) to (h).
Subclause 5(1) does not apply to material where the relevant newspaper, periodical,
newsletter or `online service' (as defined in clause 4) in which it is disseminated (or is to
be disseminated), is not targeted to the public in Australia, or is targeted to a special
interest group.
It is intended that subclause 5(1) could still apply to material targeted at a special interest
group, if the material was published by a print or online news service targeted to the
general Australian public. It is only where the publication or service itself is targeted at a
special interest group that subclause 5(1) would not apply to the relevant material.
Material disseminated, or to be disseminated, in book form (that is, in a printed, electronic
or audio book) is also excluded from the application of subclause 5(1). It is intended, for
instance, that subclause 5(1) would not apply to relevant material such as a political
biography published in book form.
Material included in a designated broadcasting or datacasting service is also excluded
from the application of subclause 5(1). A designated broadcasting or datacasting service is
defined in clause 4 to mean a licensed or retransmitted broadcasting or datacasting service
within the meaning of Schedule 7 to the Broadcasting Services Act 1992 (the BSA); or a
national broadcasting service within the meaning of the BSA. It is intended, for example,
that material included in news bulletins or current affairs programs disseminated via a
licensed broadcast service would be exempt from the definition of `news or current affairs
activities'.
It is also intended to exempt material that is disseminated, or is to be disseminated, by
means of a newspaper, periodical, newsletter or online service that is associated with a
13
designated broadcasting or datacasting service. For instance relevant material included on
a licensed broadcaster's website associated with its broadcasting service, would be
excluded.
Anything done by the provider of a `news or current affairs aggregation service' for the
purposes of the provision of such a service will also be excluded from the definition of
`news or current affairs activities'. Clause 4 defines `news or current affairs aggregation
service' to mean an online service or any other service that does no more than aggregate
material having the character of news or current affairs or material consisting of
commentary or opinion on, or analysis of, news or current affairs. The exemption would
not apply to a service that consisted partly of news or current affairs material produced by
the service provider and partly aggregated material.
The Public Interest Media Advocate may also make a legislative instrument specifying a
class of material or a class of activities to which subclause 5(1) does not apply. This is
intended as a reserve power to allow the Public Interest Media Advocate to address any
relevant unintended application of subclause 5(1). As noted under clause 3 above, the
Public Interest Media Advocate is appointed under the proposed Public Interest Media
Advocate Act 2013. Clause 21 of that Bill provides that the Public Interest Media
Advocate will be specifically exempt from direction by the Minister or the Government in
relation to the exercise of the Public Interest Media Advocate's powers.
Clause 6 - Extension to external Territories
Clause 6 extends the Act to all of the external Territories.
Part 2 - News media self-regulation body
Division 1 - Declaration
Division 1 of Part 2 of the Self-regulation Bill provides for the Public Interest Media
Advocate to declare a specified body as a `news media self-regulation body' and specifies
the conditions and requirements for making such a declaration and when it takes effect.
`News media self-regulation body' is defined in clause 4 as having the meaning given by
subclause 7(1).
Clause 7 - News media self-regulation body
Subclause 7(1) provides that the Public Interest Media Advocate may, by writing, declare
that a specified body corporate is a `news media self-regulation body' for the purposes of
the proposed Self-regulation Act. It is intended that the Public Interest Media Advocate
could declare more than one `news media self-regulation body'.
Eligibility requirements
Subclause 7(2) sets out the basic eligibility requirements that must exist in relation to a
body corporate before the Public Interest Media Advocate can declare it to be a news
media self-regulation body. The body corporate must be a body corporate registered under
14
Part 2A.2 of the Corporations Act 2001 and be a company limited by guarantee. The body
corporate must also have a `news media self-regulation scheme'.
`News media self-regulation scheme' in relation to a body corporate is defined in
clause 4. A key feature of the scheme, which must be in writing, is that it must be binding
on `news media organisation members'. A `news media organisation member' in relation
to a body corporate is defined in clause 4 to mean a `news media organisation' that is a
member of the body corporate (see discussion above under clause 4 in relation to `news
media organisations').
The scheme must also authorise the body corporate to formulate standards in relation to
the `news or current affairs activities' of its `news media organisation members' (see
discussion above under clause 5 in relation to `news or current affairs activities'). The
body corporate must also be authorised to investigate breaches of the standards (either in
response to a complaint or on its own initiative) and to take relevant remedial action if it
is satisfied in the course of an investigation that the member has breached a standard.
Subclause 7(2) further provides that the only circumstances in which the body corporate
can have the power to expel a `news media organisation member' or suspend the
member's rights as a member, are circumstances that involve failure to pay a specified fee
or charge or a breach of a `remedial direction' given by the body corporate under the
`news media self-regulation scheme'. `Remedial direction' is defined in clause 4 to
include a direction to publish an apology or a correction.
Matters to which the PIMA must have regard
Subclause 7(3) sets out the matters to which the Public Interest Media Advocate must
have regard in deciding whether to make a declaration under subclause 7(1) in relation to
a body corporate.
The matters set out in paragraphs 7(3)(a) to (n) relate to a range of considerations
including the effectiveness, or likely effectiveness, of the body corporate's `news media
self-regulation scheme' and the scheme's standards relating to privacy, fairness, accuracy,
and other matters relating to the professional conduct of journalism as well as the
scheme's complaints handling processes, independence and transparency.
Other matters relate to remedial action that the body corporate can take and the
circumstances in which a news media organisation member can be expelled or have its
rights as a member suspended. The Public Interest Media Advocate must also have
regard to matters relating to: review arrangements for the body corporate's `news media
self-regulation scheme' (including its standards and implementation); public awareness
programs relating to the scheme; and the body corporate's funding and membership
arrangements.
In making a declaration the Public Interest Media Advocate must also have regard to the
need for freedom of expression and the need to protect individual privacy as set out in
paragraphs 7(3)(o) and (p). These provisions are intended to ensure the Public Interest
Media Advocate has regard to these important rights when considering the declaration of
a body corporate as the `news media self-regulation body'. It is also intended that these
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provisions will assist in ensuring Australia meets its international obligations in relation to
these rights.
Paragraphs 7(3)(q) and 7(3)(r) also provide that the Public Interest Media Advocate must
have regard to the need to minimise the number of news media self-regulation bodies and
to such other matters (if any) as the Public Interest Media Advocate considers relevant.
Subclause 7(4) provides that, in circumstances where a body corporate requests (in
writing before 28 April 2013) the Public Interest Media Advocate to make a declaration
under subsection 7(1), and provides such information as is reasonably necessary for the
Public Interest Media Advocate to make a decision on the request, then the Public Interest
Media Advocate must take reasonable steps to ensure that it makes a decision before 25
June 2013 and, if it decides to make a declaration under subclause 7(1), to ensure that the
requested declaration takes effect before 28 June 2013.
If no declaration takes effect before 28 June 2013, the operative provisions of the
proposed News Media (Self-regulation) (Consequential Amendments) Act 2013, will
commence on 1 July 2013. This would mean that all `news media organisations' as
defined in clause 4 would lose the benefit of the `journalism exemption' in
subsection 7B(4) of the Privacy Act.
This means, in effect, that if no declaration takes effect before 28 June 2013, the general
Privacy Act provisions relating to complaints by individuals and oversight by the Office
of the Australian Information Commissioner, would invariably apply to `news media
organisations' from 1 July 2013.
If a declaration does take effect before 28 June 2013, the operative provisions of the
proposed News Media (Self-regulation) (Consequential Amendments) Act 2013,
commence the day after the end of the period of one month beginning on the first day
before 28 June 2013 on which the declaration takes effect.
If the Public Interest Media Advocate's declaration of a `news media self-regulation
body' takes effect before 28 June 2013, a `news media organisation' will have one month
to become a member of a declared body before losing the `journalism exemption'
(subsection 7B(4) of the Privacy Act).
These provisions are intended to provide certainty and a clear incentive for news media
organisations to act to establish and join a news media self-regulation body.
Declaration not disallowable
Subclause 7(5) provides that a declaration made under subclause 7(1) is a legislative
instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not
apply to the declaration.
The exemption from disallowance is intended to provide `news media organisations' with
certainty about the timing requirements for becoming members of the declared `news
media self-regulation body'. The exemption will also provide certainty to the `news media
self-regulation body' and individuals who will be affected by the new arrangements.
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The exemption is also warranted in this case in light of the detailed criteria to which the
Public Interest Media Advocate must have regard before making a declaration and the
consultation requirements that must be met before a declaration is made. The consultation
requirements are set out in clause 8 (discussed below) and include mandatory public
consultation and a requirement to consult the Privacy Commissioner.
Clause 8 - Consultation and publication
Clause 8 provides that before making a declaration under subclause 7(1) in relation to a
body corporate, the Public Interest Media Advocate must consult the Privacy
Commissioner. The Public Interest Media Advocate must also cause to be published on
the Department's website a notice setting out the draft declaration and inviting public
submissions within 14 days after the notice is published. The notice must also set out the
body corporate's news media self-regulation scheme and the initial views of the Public
Interest Media Advocate concerning the matters to which it must have regard under
subclause 7(3). The Public Interest Media Advocate is also required to consider any
submissions received within the 14 day period.
Clause 9 - When declaration takes effect
Clause 9 provides that a declaration made under subclause 7(1) takes effect at the start of
the day specified in the declaration. However, the day specified in the declaration must be
later than the day on which the declaration is registered under the Legislative Instruments
Act 2003.
Division 2 - Revocation of declaration
Division 2 of Part 2 of the Self-regulation Bill provides for the Public Interest Media
Advocate to revoke a declaration in relation to a body corporate and specifies the
conditions and requirements for revoking such a declaration and when the revocation
takes effect.
Clause 10 - Revocation of declaration
Mandatory revocation
Subclause 10(1) sets out the circumstances in which the Public Interest Media Advocate
must revoke a declaration. In effect, the Public Interest Media Advocate must revoke a
declaration when the eligibility requirements discussed in relation to subclause 7(2) above
no longer exist. However, subclause 10(2) provides that subclause 10(1) has effect subject
to subclause 10(6).
Subclause 10(6) is discussed in more detail below. In effect it prevents the Public Interest
Media Advocate revoking a declaration unless the Public Interest Media Advocate has
taken reasonable steps to ensure that a declaration in relation to another body corporate
will be in force at least 6 months before the revocation takes effect. This will provide a
lead time for members of the old body to join a news media self-regulation body.
Discretionary revocation
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Subclause 10(3) provides that the Public Interest Media Advocate may revoke a
declaration in relation to a body corporate if the Public Interest Media Advocate has
reasonable grounds to believe that, since the declaration was made, there has been a
significant change in relevant circumstances or there has been a change in relevant
community standards. This provision is intended to encourage a declared body corporate
to adapt to relevant changes so that the declared body corporate and its `news media self-
regulation scheme' reflect current circumstances and community standards.
Subclause 10(4) provides that in revoking a declaration the Public Interest Media
Advocate must have regard to the same matters that he or she must have regard to in
making a declaration as set out in paragraphs 7(3)(a) to (n). These matters are discussed in
more detail above in relation to subclause 7(3).
Subclause 10(4) also specifically provides that in revoking a declaration under
subclause 10(3) the Public Interest Media Advocate must also have regard to the need for
freedom of expression and the need to protect individual privacy, given the importance of
these rights.
Paragraph 10(4)(d) provides that the Public Interest Media Advocate must have regard to
such other matters (if any) as the Public Interest Media Advocate considers relevant.
Subclause 10(5) makes the Public Interest Media Advocate's discretion to revoke a
declaration subject to subclause 10(6), discussed below.
Replacement declaration
Subclause 10(6) prevents the Public Interest Media Advocate revoking a declaration
relating to a body corporate unless the Public Interest Media Advocate has taken
reasonable steps to ensure that a declaration in relation to another body corporate will be
in force at least 6 months before the revocation takes effect. The intention is to provide a
`news media organisation member' with a reasonable opportunity to join another declared
body, in the event that the declaration for its news media self-regulation body is revoked.
In such circumstances the Public Interest Media Advocate will have taken reasonable
steps to ensure that another `news media self-regulation body' is declared and that the
declaration is in force 6 months prior to the revocation taking effect.
Revocation not disallowable
Subclause 10(7) provides that a revocation made under subclause 10(1) or (3) is a
legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act
2003 does not apply to the declaration.
The exemption from disallowance is intended to provide a `news media organisation' with
a measure of certainty about the need to become a member of any other declared `news
media self-regulation body'. The exemption will also provide certainty to the `news media
self-regulation body' and individuals who will be affected by the new arrangements.
The exemption is also warranted in this case in light of the detailed criteria to which the
Public Interest Media Advocate must have regard before revoking a declaration and the
consultation requirements that must be met before an instrument of revocation is made.
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The consultation requirements are set out in clause 11 (discussed below) and include
mandatory public consultation and a requirement to consult the Privacy Commissioner.
Clause 11 - Consultation
Clause 11 provides that before revoking a declaration under subclause 10(3)
(Discretionary revocation), the Public Interest Media Advocate must consult the Privacy
Commissioner. The Public Interest Media Advocate must also cause to be published on
the Department's website a notice setting out the draft instrument of revocation and
inviting public submissions within 28 days after the notice is published. The Public
Interest Media Advocate is also required to consider any submissions so received. As
noted in the discussion in relation to subclause 10(6) above, these mandatory extensive
consultation requirements warrant the exemption from the disallowance provision of the
Legislative Instruments Act 2003.
Clause 12 - When revocation takes effect
Clause 12 provides that a revocation made under subclause 10(1) or (3) takes effect at the
start of the day specified in the declaration. However the day specified in the instrument
of revocation must be later than the day on which the declaration is registered under the
Legislative Instruments Act 2003.
Part 3 - Miscellaneous
Clause 13 - Online service provider
Subclause 13(1) provides that, for the purposes of the Self-regulation Bill, a person does
not provide an online service merely because the person supplies a carriage service that
enables content to be delivered or accessed.
Subclause 13(2) provides that, for the purposes of the Self-regulation Bill, a person does
not provide an online service merely because the person provides a billing service, or a
fee collection service, in relation to an online service.
These rules reflect corresponding provisions in clause 5 of Schedule 7 to the BSA and are
included to maintain consistency.
Clause 14 - Implied freedom of political communication
Clause 14 provides that the proposed Self-regulation Act does not apply to the extent, if
any, that it would infringe any constitutional doctrine of implied freedom of political
communication.
Clause 15 - Review of this Act
Subclause 15(1) provides that before the end of the 3-year period beginning on the first
day on which a declaration under subclause 7(1) takes effect, the Minister must cause a
review to be commenced of the operation of the proposed Self-regulation Act. The
duration of the review is not specified, as it will depend on the range and complexity of
issues that emerge during the first three years of the Act's operation.
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Subclause 15(2) provides that a review under subclause (1) must provide for wide public
consultation, including consultation with the Public Interest Media Advocate and each
news media self-regulation body.
Subclause 15(3) provides that the Minister must cause to be prepared a report of a review
under subclause 15(1).
Subclause 15(4) provides that a report of a review under subclause 15(1) must not contain
any information that is likely to enable the identification of an individual unless the
individual has consented to the information being contained in the report.
Subclause 15(5) provides that the Minister must cause copies of a report to be tabled in
each House of the Parliament within 15 sitting days of that House after the completion of
the preparation of the report.
Clause 16 - Regulations
Clause 16 provides that the Governor-General may make regulations prescribing matters
necessary or convenient to be prescribed for carrying out or giving effect to the proposed
Self-regulation Act.
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NEWS MEDIA (SELF-REGULATION) (CONSEQUENTIAL AMENDMENTS)
BILL 2013
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title for the Act. When enacted, the
Consequential Amendments Bill is to be cited as the News Media (Self-regulation)
(Consequential Amendments) Act 2013.
Clause 2 - Commencement
Clause 2 sets out when the provisions of the Act commence. The provisions specified in
column 1 of the table will commence, or will be taken to have commenced, on the day
specified in column 2 of the table.
Sections 1 to 3, and anything not elsewhere covered by the table, commence on the day
the Act receives the Royal Assent.
Schedule 1 commences the day after the end of the period of one month beginning on the
first day before 28 June 2013 on which a declaration under subsection 7(1) of the
proposed News Media (Self-regulation) Act 2013 takes effect.
If no declaration under subsection 7(1) of the proposed News Media (Self-regulation) Act
2013 takes effect before 28 June 2013, the provision(s) commence on 1 July 2013.
However the provision(s) do not commence at all if section 3 of the News Media (Self-
regulation) Act 2013 has not commenced before 28 June 2013.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item
in a Schedule to this Act has effect according to its terms.
Schedule 1 - Amendments
Privacy Act 1988
Item 1 - At the end of subsection 7B(4)
Item 1 amends subsection 7B(4) of the Privacy Act by inserting proposed
paragraph 7B(4)(c).
Subsection 7B(4) currently provides that an act done or a practice engaged in by a media
organisation is exempt for the purposes of paragraph 7(1)(ee) of the Privacy Act if it is
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done in the course of journalism and at a time when the organisation is publicly
committed to published privacy standards. In effect, this means that the activities of
`news media organisations' that currently qualify for the exemption are not subject to the
Privacy Act provisions that relate to the obtaining, keeping and disclosing of personal
information.
Under the proposed amendment a `news media organisation' that is not a member of a
`news media self-regulation body' or has had its membership suspended, would no longer
qualify for the exemption and would, therefore, be subject to the provisions of the Privacy
Act that relate to the obtaining, keeping and disclosing of personal information. Such a
news media organisation could also be subject to an approved privacy code under the
Privacy Act.
Item 2 - After subsection 7B(4)
Item 2 amends section 7B of the Privacy Act by inserting proposed subsection 7B(4A).
Proposed subsection 7B(4A) provides that proposed paragraph 7B(4)(c) does not apply to
the extent (if any) that it would infringe any constitutional doctrine of implied freedom of
political communication.
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