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Broadcasting Services Amendment (Media Ownership) Bill 2002

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2002

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Broadcasting Services Amendment (Media Ownership) Bill 2002

 

 

(1)     Schedule 1, page 4 (after line 8), at the end of the Schedule, add:

16  Paragraph 10(1)(c) of Schedule 2

Repeal the paragraph.

[foreign control of television]

(2)     Schedule 2, page 5 (after line 8), after item 1, insert:

1A  After section 49

Insert:

49A   Prohibition of contracts or arrangements restricting the program format of commercial radio broadcasting services

Contracts or arrangements for transfer of licences

             (1)  A person must not enter into a contract or arrangement for the transfer of a commercial radio broadcasting licence to a person (the transferee ) if:

                     (a)  under the contract or arrangement, the transferee is subject to any limitation or restriction in relation to the program format of the commercial radio broadcasting service; or

                     (b)  an effect or likely effect of the contract or arrangement is that the transferee will be subject to any limitation or restriction in relation to the program format of the commercial radio broadcasting service.

             (2)  Subsection (1) does not apply to a contract or arrangement of a kind declared by the regulations to be exempt from subsection (1).

Contracts or arrangements for transfer of control of licences

             (3)  A person must not enter into a contract or arrangement for the transfer of control of a commercial radio broadcasting licence if:

                     (a)  under the contract or arrangement, the licensee is subject to any limitation or restriction in relation to the program format of the commercial radio broadcasting service; or

                     (b)  an effect or likely effect of the contract or arrangement is that the licensee will be subject to any limitation or restriction in relation to the program format of the commercial radio broadcasting service.

             (4)  For the purposes of subsection (3), a contract or arrangement is for the transfer of control of a commercial radio broadcasting licence if, and only if, under the contract or arrangement, a person who was not in a position to exercise control of the licence becomes in a position to exercise control of the licence.

             (5)  Subsection (3) does not apply to a contract or arrangement of a kind declared by the regulations to be exempt from subsection (3).

Other contracts or arrangements

             (6)  A person must not enter into a contract or arrangement if:

                     (a)  an effect or likely effect of the contract or arrangement is that a commercial radio broadcasting licensee will be subject to any limitation or restriction in relation to the program format of the commercial radio broadcasting service; and

                     (b)  either:

                              (i)  a purpose of the contract or arrangement is to give a commercial advantage or benefit to another commercial radio broadcasting licensee whose licence has the same licence area as the licence of the first-mentioned licensee; or

                             (ii)  an effect or likely effect of the contract or arrangement is to give a commercial advantage or benefit to another commercial radio broadcasting licensee whose licence has the same licence area as the licence of the first-mentioned licensee.

             (7)  Subsection (6) does not apply to a contract or arrangement if:

                     (a)  the contract or arrangement is covered by subsection (1) or (3); or

                     (b)  the contract or arrangement is of a kind declared by the regulations to be exempt from subsection (6); or

                     (c)  the contract or arrangement is exempt from subsection (6) because of an order under subsection (8).

             (8)  The ABA may make a written order that, in the event that a particular proposed contract or arrangement is entered into, the contract or arrangement is exempt from subsection (6).

             (9)  In deciding whether to make an order under subsection (8), the ABA must have regard to:

                     (a)  such matters (if any) as are specified in the regulations; and

                     (b)  such other matters as the ABA considers relevant.

Overlapping licence areas

           (10)  If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

paragraph (6)(b) applies to the 2 licence areas, but not between those licence areas and other licence areas, as if the 2 licence areas were one.

Prohibited contract or arrangement is void

           (11)  A contract or arrangement entered into in contravention of subsection (1), (3) or (6) is void.

Civil penalties

           (12)  If the Federal Court is satisfied that a person has contravened subsection (1), (3) or (6), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

           (13)  In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

           (14)  The pecuniary penalty payable under subsection (12) by a body corporate is not to exceed $275,000 for each contravention.

           (15)  The pecuniary penalty payable under subsection (12) by a person other than a body corporate is not to exceed $55,000 for each contravention.

           (16)  The ABA may institute a proceeding in the Federal Court for recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (12).

           (17)  A proceeding under subsection (16) may be commenced within 6 years after the contravention.

[commercial radio program format]

(3)     Schedule 2, item 4, page 6 (after line 17), after the definition of community service announcement , insert:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

[cross-media rules]

(4)     Schedule 2, item 4, page 7 (line 33), before “licence area”, insert “metropolitan”.

[cross-media rules]

(5)     Schedule 2, item 4, page 8 (after line 12), after subparagraph (ii), insert:

                           (iia)  the holder of the certificate is an associate of the person;

[cross-media rules]

(6)     Schedule 2, item 4, page 14 (after line 33), after section 61P, insert:

Subdivision BA Disclosure of cross-media relationships

61PA   Disclosure of cross-media relationship by commercial television broadcasting licensee

Scope

             (1)  This section applies if:

                     (a)  one or more cross-media exemption certificates are active in relation to a set of media operations; and

                     (b)  a commercial television broadcasting licence is included in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial radio broadcasting licensee whose licence is included in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is included in the set.

Note:          For business affairs , see section 61PG.

Requirement to disclose

             (2)  If subparagraph (1)(c)(i) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

             (3)  If subparagraph (1)(c)(ii) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the publisher of the newspaper. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (4)  A statement under subsection (2) or (3) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).

             (5)  The regulations may provide that subsection (4) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

Period of grace

             (6)  Subsections (2) and (3) do not apply during the 14-day period beginning:

                     (a)  if there is only one cross-media exemption certificate—when the certificate becomes active in relation to the commercial television broadcasting licence; or

                     (b)  if there are 2 or more cross-media exemption certificates—at the earliest time when any of those certificates became active in relation to the commercial television broadcasting licence.

Note:          For enforcement of this section, see the licence condition set out in paragraph 7(1)(pa) of Schedule 2.

61PB   Choice of disclosure method—commercial radio broadcasting licensee

Notice of choice may be given to the ABA

             (1)  A commercial radio broadcasting licensee may give the ABA a written notice making a choice that section 61PD apply to the licensee with effect from a Sunday specified in the notice.

Note:          If a notice is not given, section 61PC applies to the licensee.

When notice must be given

             (2)  A notice under subsection (1) must be given at least 5 business days before the Sunday specified in the notice.

Duration of notice

             (3)  A notice under subsection (1):

                     (a)  comes into force at the beginning of the Sunday specified in the notice; and

                     (b)  unless sooner revoked, remains in force indefinitely.

Revocation of notice

             (4)  If a notice under subsection (1) is in force in relation to a commercial radio broadcasting licensee, the licensee may, by written notice given to the ABA, revoke the subsection (1) notice with effect from the end of a Saturday specified in the revocation notice.

             (5)  A notice under subsection (4) must be given at least 5 business days before the Saturday specified in the notice.

Notices to be available on the Internet

             (6)  If a notice is in force under subsection (1), the ABA must make a copy of the notice available on the Internet.

Definition

             (7)  In this section:

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

61PC   Disclosure of cross-media relationship by commercial radio broadcasting licensee—business affairs disclosure method

Scope

             (1)  This section applies if:

                     (a)  one or more cross-media exemption certificates are active in relation to a set of media operations; and

                     (b)  a commercial radio broadcasting licence is included in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is included in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is included in the set; and

                     (d)  a notice under subsection 61PB(1) is not in force in relation to the commercial radio broadcasting licensee.

Note:          For business affairs , see section 61PG.

Requirement to disclose

             (2)  If subparagraph (1)(c)(i) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  If subparagraph (1)(c)(ii) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (4)  A statement under subsection (2) or (3) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).

             (5)  The regulations may provide that subsection (4) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

Period of grace

             (6)  Subsections (2) and (3) do not apply during the 14-day period beginning:

                     (a)  if there is only one cross-media exemption certificate—when the certificate becomes active in relation to the commercial radio broadcasting licence; or

                     (b)  if there are 2 or more cross-media exemption certificates—at the earliest time when any of those certificates became active in relation to the commercial radio broadcasting licence.

Note:          For enforcement of this section, see the licence condition set out in paragraph 8(1)(ia) of Schedule 2.

61PD   Disclosure of cross-media relationship by commercial radio broadcasting licensee—regular disclosure method

Scope

             (1)  This section applies if:

                     (a)  one or more cross-media exemption certificates are active in relation to a set of media operations; and

                     (b)  a commercial radio broadcasting licence is included in the set; and

                     (c)  a notice under subsection 61PB(1) is in force in relation to the commercial radio broadcasting licensee.

Requirement to disclose cross-media relationship

             (2)  If a commercial television broadcasting licence is included in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  If a newspaper is included in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (4)  Statements under subsection (2) or (3) are to be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the audience of the commercial radio broadcasting service during prime-time hours is aware that:

                     (a)  in the case of statements under subsection (2)—there is a relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee; or

                     (b)  in the case of statements under subsection (3)—there is a relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (5)  A commercial radio broadcasting licensee is taken to have complied with subsection (4) if:

                     (a)  the statement is broadcast at least once each day during prime-time hours; and

                     (b)  the statement is broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast of the statement.

             (6)  The regulations may provide that a commercial radio broadcasting licensee is taken to have complied with subsection (4) if the statement is broadcast in the manner, and at the times, ascertained in accordance with the regulations.

Period of grace

             (7)  Subsections (2) and (3) do not apply during the 14-day period beginning:

                     (a)  if there is only one cross-media exemption certificate—when the certificate becomes active in relation to the commercial radio broadcasting licence; or

                     (b)  if there are 2 or more cross-media exemption certificates—at the earliest time when any of those certificates became active in relation to the commercial radio broadcasting licence.

Note:          For enforcement of this section, see the licence condition set out in paragraph 8(1)(ia) of Schedule 2.

61PE   Disclosure of cross-media relationship by publisher of newspaper

Scope

             (1)  This section applies if:

                     (a)  one or more cross-media exemption certificates are active in relation to a set of media operations; and

                     (b)  a newspaper is included in the set; and

                     (c)  the newspaper is published by a constitutional corporation; and

                     (d)  material published in a particular edition of the newspaper is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is included in the set; or

                             (ii)  the business affairs of a commercial radio broadcasting licensee whose licence is included in the set.

Note:          For business affairs , see section 61PG.

Requirement to disclose

             (2)  If subparagraph (1)(d)(i) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial television broadcasting licensee. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the publisher and the commercial television broadcasting licensee.

             (3)  If subparagraph (1)(d)(ii) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial radio broadcasting licensee. For this purpose, it is sufficient if the statement is to the effect that there is a cross-media relationship between the publisher and the commercial radio broadcasting licensee.

How statement is to be published

             (4)  A statement under subsection (2) or (3) must be published in a way that will adequately bring it to the attention of a reasonable person who may have read the material mentioned in paragraph (1)(d).

             (5)  The regulations may provide that subsection (4) is taken to have been complied with if the statement is published in the manner specified in, or ascertained in accordance with, the regulations.

Period of grace

             (6)  Subsections (2) and (3) do not apply during the 14-day period beginning:

                     (a)  if there is only one cross-media exemption certificate—when the certificate becomes active in relation to the newspaper; or

                     (b)  if there are 2 or more cross-media exemption certificates—at the earliest time when any of those certificates became active in relation to the newspaper.

Offence

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for a contravention of this subsection:     2,000 penalty units.

61PF   Exception—political communication

                   Sections 61PA, 61PC, 61PD and 61PE do not apply to the extent (if any) that they would infringe any constitutional doctrine of implied freedom of political communication.

61PG   Matter or material about the business affairs of a broadcasting licensee or newspaper publisher

Matter or material about business affairs—what is included and excluded

             (1)  A reference in this Subdivision to matter or material that is wholly or partly about the business affairs of a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a newspaper publisher:

                     (a)  includes a reference to matter or material, where, having regard to:

                              (i)  the nature of the matter or material; and

                             (ii)  the way in which the matter or material is presented;

                            it would be reasonable to conclude that the object, or one of the objects, of the broadcast of the matter or the publication of the material, as the case may be, was to:

                            (iii)  promote; or

                            (iv)  otherwise influence members of the public, or of a section of the public, to view, to listen to, or to read;

                            matter broadcast, or to be broadcast, by the licensee, or material published, or to be published, in the newspaper, as the case may be; and

                     (b)  does not include a reference to:

                              (i)  a journalistic acknowledgment of a program or article as being the source of particular information; or

                             (ii)  advertising matter or advertising material, where a reasonable person would be able to distinguish the advertising matter or advertising material from other matter or material; or

                            (iii)  a comment in a live broadcast, where the comment could not reasonably have been anticipated; or

                            (iv)  a program guide (see subsection (2)); or

                             (v)  exempt matter or exempt material (see subsection (4)).

Program guide

             (2)  For the purposes of this section, a program guide is matter or material that consists of no more than:

                     (a)  a schedule of:

                              (i)  the television programs provided by 2 or more television broadcasting services; or

                             (ii)  the radio programs provided by 2 or more radio broadcasting services; or

                     (b)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief;

where the matter or material does not single out one of those services for special promotion.

             (3)  For the purposes of subsection (2):

                     (a)  a television broadcasting service is:

                              (i)  a commercial broadcasting service that provides television programs; or

                             (ii)  a national broadcasting service that provides television programs; and

                     (b)  a radio broadcasting service is:

                              (i)  a commercial broadcasting service that provides radio programs; or

                             (ii)  a national broadcasting service that provides radio programs.

Exempt matter or exempt material

             (4)  The Minister may, by writing, determine that:

                     (a)  matter included in a specified class of matter is exempt matter for the purposes of this section; and

                     (b)  material included in a specified class of material is exempt material for the purposes of this section.

             (5)  A determination under subsection (4) has effect accordingly.

             (6)  A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Advertising matter

             (7)  This section does not, by implication, affect the meaning of the expression advertising when used in any other provision of this Act.

[cross-media rules]

(7)     Schedule 2, page 23 (after line 26), after item 8, insert:

8A  Section 204 (after table item relating to subsection 43(1))

Insert:

 

Refusal to make an order in relation to a proposed contract or arrangement

Subsection 49A(8)

A person who proposes to enter into the contract or arrangement

[commercial radio program format]

(8)     Schedule 2, item 12, page 24 (before line 11), before paragraph (q), insert:

                   (pa)  the licensee will comply with a requirement that is applicable to the licensee under section 61PA;

[cross-media rules]

(9)     Schedule 2, item 15, page 24 (before line 23), before paragraph (j), insert:

                    (ia)  the licensee will comply with a requirement that is applicable to the licensee under section 61PC or 61PD;

[cross-media rules]