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Broadcasting Services Amendment (Public Interest Test) Bill 2012

Schedule 1 Amendments

   

Broadcasting Services Act 1992

1  After Part 5

Insert:

Part 5A Public interest test for control of media operations of national significance

Division 1 Preliminary

78A   Definitions

                   In this Part:

control : a person is in a position to exercise control of a media operation if one or more of the following apply:

                     (a)  the person is in a position to exercise control of the media operation in accordance with Schedule 1;

                     (b)  if the media operation is a newspaper the publisher of which is a company, or a licence for which the licensee is a company—the person:

                              (i)  appoints a director to the board of directors of the company; and

                             (ii)  has company interests (within the meaning of Schedule 1) in the company exceeding 10% at the time of the appointment;

                     (c)  if the media operation is a newspaper the publisher of which is a company, or a licence for which the licensee is a company—the person acquires an interest in the voting shares of the company where that acquisition is exempt from the prohibition in subsection 606(1) or (2) of the Corporations Act 2001 because of section 611 of that Act.

controller , in relation to a media operation, means a person who is in a position to exercise control of the media operation.

media operation means:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a subscription television broadcasting licence; or

                     (c)  a commercial radio broadcasting licence; or

                     (d)  a newspaper.

media operation of national significance means a media operation that has:

                     (a)  control over the content it delivers; and

                     (b)  an audience within Australia of at least 500,000 persons per month; and

                     (c)  a minimum revenue of $50,000,000 per year derived by supplying content to that audience.

78B   Newspapers—additional constitutional basis

             (1)  Without limiting its effect apart from this section, this Act also has effect as provided by this section.

             (2)  This Act also has the effect it would have if each reference in this Part to a newspaper were, by express provision, confined to a newspaper where:

                     (a)  the publisher of the newspaper is a constitutional corporation; or

                     (b)  at least part of the circulation of the newspaper is:

                              (i)  in 2 or more States; or

                             (ii)  in a Territory; or

                            (iii)  in a foreign country.

Division 2 Notifying ACMA of position to exercise control of media operation of national significance

78C   Notifying ACMA of position to exercise control of media operation of national significance

             (1)  If a person who was not in a position to exercise control of a media operation of national significance becomes aware that the person has become, on or after 28 June 2012, in a position to exercise control of the media operation, the person must notify the ACMA, in writing, of that position.

             (2)  The notice must be given:

                     (a)  if the controller becomes aware before the commencement of this section —within 14 days after that commencement; and

                     (b)  if the controller becomes aware at or after the commencement of this section—within 14 days after becoming so aware.

Offence

             (3)  A person commits 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 contravention of this subsection:        500 penalty units.

Division 3 Determining whether position to exercise control of media operation of national significance is in public interest

78D   ACMA to determine whether position to exercise control of media operation of national significance is in public interest

             (1)  This section applies if the ACMA becomes aware (whether or not because of a notice given under section 78C) that a person who was not in a position to exercise control of a media operation of national significance has become, on or after 28 June 2012, in a position to exercise control of the media operation.

ACMA to determine whether position to exercise control is in public interest

             (2)  The ACMA must determine whether the controller’s position to exercise control of the media operation of national significance is in the public interest .

Note:          Section 78E sets out matters to which the ACMA must have regard in determining whether that position is in the public interest.

             (3)  The ACMA must give written reasons for a determination under subsection (2).

ACMA to give remedial direction if position to exercise control not in public interest

             (4)  If the ACMA is satisfied that the controller’s position to exercise control of the media operation is not in the public interest, the ACMA must give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that the controller is no longer in a position to exercise control of the media operation.

             (5)  The ACMA’s directions may include:

                     (a)  a direction requiring the disposal of shares or interests in shares; or

                     (b)  a direction restraining the exercise of any rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares; or

                     (c)  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; or

                     (d)  a direction that any exercise of rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares;

                            be disregarded.

             (6)  Subsection (5) does not limit subsection (4).

             (7)  A direction under subsection (4) must specify a period within which the person must comply with the direction.

             (8)  The period must not be longer than 2 years.

Information gathering powers

             (9)  For the purposes of Part 13 of this Act:

                     (a)  the function of determining under this section whether a controller’s position to exercise control of a media operation of national significance is in the public interest is taken to be a broadcasting, content and datacasting function of the ACMA; and

                     (b)  any power under this Part related to that function is taken to be power related to a broadcasting, content and datacasting function of the ACMA.

78E   Determining whether position to exercise control of media operation of national significance is in public interest

             (1)  In determining for the purposes of section 78D whether a controller’s position to exercise control of a media operation of national significance is in the public interest, the ACMA must have regard to the following matters:

                     (a)  whether that position will diminish the diversity of unique owners providing general content services as well as news and commentary at a national level;

                     (b)  whether that position will diminish the range of content services at a national level;

                     (c)  whether there is a significant risk that, as a result of that position, the media operation will not comply with its obligations under this Act or any other law of the Commonwealth;

                     (d)  the likely impact of that position on editorial independence for the media operation;

                     (e)  the likely impact of that position on free expression of opinion;

                      (f)  the likely impact of that position on the fair and accurate presentation of news;

                     (g)  any other matter that the ACMA considers relevant.

             (2)  The ACMA may publish guidelines relating to determining for the purposes of section 78D whether a controller’s position to exercise control of a media operation of national significance is in the public interest.

78F   Extension of time for compliance with remedial direction

             (1)  A person who has been given a direction under subsection 78D(4) may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.

             (5)  In deciding whether to grant an extension to a person, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the direction; and

                     (b)  the difficulties experienced by the applicant in attempting to comply with the direction.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.

             (7)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

78G   Breach of remedial direction—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a direction under subsection 78D(4); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the direction.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

78H   Breach of remedial direction—civil penalty

             (1)  A person must comply with a direction under subsection 78D(4).

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

2  Subsection 204(1) (after the table item dealing with review of a decision made under subsection 71(3))

Insert:

Refusal to extend time for compliance

Section 78F

The applicant

3  Application of amendments

(1)       To avoid doubt, section 78C of the Broadcasting Services Act 1992 , as inserted by this Schedule, applies on and after the commencement of this item, whether the person becomes aware of the person’s position to exercise control of the media operation before, at or after that commencement.

(2)       To avoid doubt, section 78D of the Broadcasting Services Act 1992 , as inserted by this Schedule, applies on and after the commencement of this item, whether the ACMA becomes aware of the person’s position to exercise control of the media operation before, at or after that commencement.