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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

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Honourable Richard Alston)



GOVERNMENT AMENDMENTS TO THE

BROADCASTING SERVICES AMENDMENT

(MEDIA OWNERSHIP) BILL 2002

OUTLINE

The Broadcasting Services Amendment (Media Ownership) Bill 2002 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) to reform the foreign and cross-media ownership regime in Australia.

 

The Bill removes the restrictions on foreign ownership and control of Australian media from the BSA.  Foreign ownership of commercial television and subscription television interests will be regulated by the Foreign Acquisitions and Takeovers Act 1975 and the Trade Practices Act 1974

 

The Bill authorises the Australian Broadcasting Authority (ABA) to grant cross-media exemption certificates on application.  Holders of exemption certificates are not in breach of the cross-media rules in relation to media entities which they control, provided the conditions of the certificate are satisfied. 

 

The Bill provides that the certificate must be issued if the ABA is satisfied that the conditions included in the application will meet the objective of editorial separation for the set of media operations concerned.  This objective is that separate editorial decision-making responsibilities must be maintained in relation to each of the media operations. 

 

Three mandatory tests are prescribed for the objective of editorial separation to be met.  They are the existence of:

(a)            separate editorial policies;

(b)           appropriate organisational charts; and

(c)            separate editorial news management, news compilation processes and news gathering and interpretation capabilities.

 

Once a certificate becomes active, holders of the certificate must ensure that the certificate requirements are continuously met in order for the certificate to remain active.  In addition, the ABA may direct the person under section 70 of the BSA to take action (eg selling shares) to cure the breach.   Meeting the objective of editorial separation also becomes a condition of licence, so that the ordinary mechanisms for enforcement of licence conditions apply.  The ABA has power to investigate complaints in relation to breaches of licence conditions. 

 

The provisions of the Bill were considered by the Senate Environment, Communications, Information Technology and the Arts Legislation Committee in its report of 18 June 2002.  The Committee recommended by majority that the Bill be agreed to, subject to some amendments.

 

Amendments (3), (6), (8) and (9) implement recommendation 1 of the Majority Report of the Committee. 

 

Recommendation 1 is that a media company which holds a cross-media exemption would be required to disclose the cross-media holding in certain circumstances.  The amendments impose a general obligation to disclose a cross-media relationship on media outlets subject to the same exemption certificate.  There are two means of disclosure detailed in the legislation:

1.       the default ‘business affairs’ model, which will apply to commercial television broadcasters and newspapers, and which will be the default disclosure model for commercial radio broadcasters; and

2.       an alternative ‘regular disclosure’ model which will only be available to commercial radio broadcasters.  A commercial radio broadcaster may choose to adopt this model by written notice to the ABA.

 

The business affairs model requires that media outlets disclose a cross-media relationship at the time that they broadcast or publish matter, other than advertising matter, that is wholly or partly about the business affairs of a cross-controlled media organisation.  This would include the promotion of specific matter broadcast or published by a cross-controlled media organisation.

 

Exemptions are given for clearly identified advertising, factual listings of programs (TV/radio guides), journalistic acknowledgment of sources, and comments made in live broadcasts which could not reasonably have been anticipated.

 

Further material may be exempted from the business affairs disclosure requirement by Ministerial determination.  Any such determination would be a disallowable instrument.  This is intended to deal with situations where the breadth of the business affairs definition means that the disclosure requirement is triggered in a manner inconsistent with the objects of the Bill.  

 

Commercial radio broadcasters may adopt the regular disclosure method by written notification to the ABA.  This method requires a broadcaster covered by a certificate to regularly disclose a cross-media relationship in such a way and with such frequency that the prime-time hours audience of the broadcaster would be reasonably likely to be aware of the cross-media relationship.  The intended effect is to establish a general level of audience awareness about the cross-media relationship.

 

In order to provide greater certainty in relation to the regular disclosure method, a provision is also included which specifies a means by which radio broadcasters may satisfy the requirement for regular disclosure.  This provision establishes a ‘sufficient but not necessary’ means of disclosure.

 

The alternative regular disclosure model is provided as an option only in the case of radio because of the particular characteristics of that industry.  Commentary on radio is generally unscripted and the radio broadcasting companies typically vary greatly in size and resources.

 

Under both methods of disclosure, it will be sufficient if the disclosure statement is to the effect that there is a cross-media relationship between the media outlets covered by the exemption certificate.  For each method, regulations may also provide that broadcasters and newspapers have complied with the requirements if the statement is broadcast or published in the manner and at the times prescribed in regulations.

 

Compliance with the disclosure requirement will be a licence condition for television and radio licences (see Amendments (8) and (9)).  As newspapers are not subject to the licensing scheme in the BSA, enforcement of the disclosure requirement for newspapers is by way of a criminal offence.

 

Amendment (4) gives effect to Recommendation 3 of the Majority Report of the Committee that a cross-media exemption in regional areas could only authorise cross-ownership in two of the three types of media (television, radio and newspapers) covered by the cross-media rules.  This provision acknowledges that regional areas frequently have comparatively fewer choices of media outlets than in metropolitan Australia.

 

The Committee’s remaining recommendations relate to extending local news requirements to all regional broadcasters, and providing incentives (such as licence fee rebates for the production of local content in regional areas).  These are not addressed in the Bill, as the Government intends to give further consideration to these issues in the context of the ABA’s final determination on its investigation into the adequacy of local news and information programs on regional television.

Amendments (2) and (7) prohibit contracts and arrangements which restrict the program format of commercial broadcasting radio services. 

 

These provisions are intended to address a situation where for commercial or other reasons a person acts in a manner which limits or restricts the diversity of commercial radio broadcasting services of broad appeal available within a licence area.  A related effect of concern is a reduction in competition for audience and advertisers, which could result from program format restrictions.

 

The following types of transactions will be void under the new provisions:

(a)     a contract or arrangement for the transfer of a commercial radio broadcasting licence, where the contract or arrangement restricts the program format of the service provided under that licence;

(b)    a contract or arrangement for the transfer of control of a commercial radio broadcasting licence, where the contract or arrangement restricts the program format of the service provided under that licence;

(c)     any other contract or arrangement which restricts the program format of a commercial broadcasting radio service, where the purpose or effect, or likely effect, of the contract or arrangement is to confer a commercial advantage on another commercial radio broadcasting licensee in the same licence area.

 

The term ‘arrangement’ is intended to apply to a transaction, agreement or understanding which does not constitute a legally binding contract.  For this purpose, an arrangement could be formal or informal, written or unwritten.

 

The prohibitions will not apply to contracts or arrangements exempted by regulation.  There may be legitimate types of transactions which should not be prevented.  The regulations making power is included to allow some flexibility once the provisions commence.

 

In the case of contracts or arrangements falling under the broad provisions outlined in paragraph (c), the ABA may exempt a particular proposed contract or arrangement from the prohibition on a case by case basis.  This provision is intended to take account of unanticipated and unique circumstances where, for example, a contract or arrangement that would otherwise be in breach is considered by the ABA not to be contrary to the public interest.

 

In the case of contracts or arrangements falling under paragraph (c), where there is licence area overlap the same test is applied to establish the relevant licence areas as under existing section 51 of the BSA.

 

The conditional sale of a licence may, depending on the circumstances, be contrary to certain provisions of the Trade Practices Act 1974 (TPA) which deal with contracts that have the effect of substantially lessening competition, and abuse of market power.

Concerns about the on-selling of licences in the manner described could be investigated under the provisions of the TPA, particularly sections 45 and 50 of that Act. 

 

However, the nature of such an investigation and the likelihood of successful enforcement action would be dependent on the specifics of each case.  Furthermore, tests under the TPA generally relate to competition, rather than diversity, which is the primary concern of this amendment.

 

Amendments (1) and (5) are consequential and technical amendments.

FINANCIAL IMPACT

The amendments are not expected to have any significant impact on Commonwealth expenditure or revenue.



NOTES ON AMENDMENTS

Amendment (1)

Item 10 of Schedule 1 of the Bill repeals all remaining restrictions on foreign ownership and control of subscription television broadcasting licences which are currently in Part 7 of the BSA.

 

As a consequence of this, paragraph 10(1)(c) of Schedule 2 of the BSA is no longer required.  That provision is therefore repealed by Amendment (1). 

 

Amendment (2)

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

Amendment (2) inserts new section 49A into the BSA, which will prohibit contracts or arrangements which restrict the program format of commercial radio broadcasting services. 

 

Contracts or arrangements for transfer of licences

Subsection 49A(1) prohibits a person from entering into a contract or arrangement for the transfer of a commercial radio broadcasting licence if:

(a)     the contract or arrangement imposes any restriction on the program format of the service provided under the licence; or

(b)    the contract or arrangement will, or is likely to, have the effect of limiting the program format of the service provided under the licence.

 

An arrangement need not be legally binding to be caught by the prohibition.  The term ‘arrangement’ is intended to apply to a transaction, agreement or understanding which does not constitute a legally binding contract.  For this purpose, an arrangement could be formal or informal, written or unwritten. 

 

As these tests are objective, the parties’ subjective intentions are irrelevant. 

Because the prohibition is in broad terms, subsection (2) allows regulations to be made to exempt kinds of contracts or arrangements from the prohibition in subsection (1).

 

Contracts or arrangements for transfer of control of licences

Subsection (3) is essentially the same prohibition as subsection (1).  However, subsection (3) applies where the contract or arrangement provides for the transfer of control of a licence to another person, rather than transfer of the licence .  Subsection (3) would cover, for example, a transaction for the sale of the shares in the licensee company, where the identity of the licensee company itself does not change. 

 

Subsection (4) explains that ‘transfer of control’ occurs where the contract or arrangement results in a person becoming in a position to exercise control of the licence. 

 

The existing provisions in Schedule 1 of the BSA will apply in determining questions of control for the purposes of this section. 

 

Subsection (5) allows regulations to be made to exempt kinds of contracts or arrangements from the prohibition in subsection (3).  There may be legitimate types of transactions which should not be prevented.

 

Other contracts or arrangements

It is possible that program format restrictions might be imposed in circumstances where neither the licence itself, nor control of the licence, is transferred.  For example, the format restriction might be imposed not by the transfer contract, but by a collateral contract between the parties.  Arrangements might also be structured so that the format restriction is imposed by a contract or arrangement with a third party.

Accordingly, subsection (6) prohibits a person from entering into any contract or arrangement which will, or is likely to, have the effect of limiting the program format of the service provided under the licence (the same test in paragraph (1)(b)), where:

(a)     the contract or arrangement is intended to give a commercial advantage to another commercial radio broadcaster in the same licence area; or

(b)    the contract or arrangement will, or is likely to, have the effect of giving a commercial advantage to another commercial radio broadcaster in the same licence area. 

 

Subsection (10) treats significantly overlapping licence areas as the same licence area for the purposes of paragraph (6)(b).  This is the same approach taken in the ownership and control provisions in Part 5 of the BSA (see section 51). 

 

A transaction which is covered by subsection (1) or (3) is excluded from the prohibition in subsection (6) (see paragraph (7)(a)). 

 

The mechanism for regulations to exempt classes of transactions from the prohibition applies to subsection (6) (see paragraph (7)(b)). 

 

The ABA will also have a power to exempt a particular proposed transaction from subsection (6), on a case by case basis (see paragraph (7)(c) and subsection (8)).  Regulations may prescribe matters which the ABA would be required to consider in deciding whether to exempt the transaction (subsection (9)).  Refusal to exempt a transaction will be reviewable by the Administrative Appeals Tribunal (see Amendment (7) below). 

 

Enforcement

A contract or arrangement which is contrary to subsection (1), (3) or (6) will be void (see subsection (11)). 

 

As an additional deterrent, provision is also made for the ABA to apply to the Federal Court for a pecuniary penalty order (subsections (12) and (16)).  The limitation period is 6 years (subsection (17)).  Provision for civil penalties rather than criminal offences is consistent with the approach taken to breaches of the restrictive trade practices provisions in Part IV of the Trade Practice Act 1974

 

The maximum penalty for an individual is $55,000 (subsection (15)).  This amount is equivalent to 500 penalty units (see subsection 4AA(1) of the Crimes Act 1914 ).  Five hundred penalty units is the maximum penalty for the criminal offence of a licence condition by a commercial radio broadcasting licensee (see existing subsection 139(3)).  Consistently with subsection 4B(3) of the Crimes Act, the maximum penalty for a body corporate is set at five times the ordinary maximum penalty, ie $275,000 (subsection (14)).  Subsection (13) lists matters which the Court must consider in determining the appropriate penalty. 

 

Amendment (3)

This amendment inserts a definition of a term used in the disclosure provisions applicable to newspaper publishers (ie new sections 61PF and 61PG, inserted by Amendment (6) below). 

 

Amendment (4)

Amendment (4) implements recommendation 3 of the Senate Committee’s report, which is that in regional markets, a cross-media exemption only be allowed in relation to cross-ownership of two of the three categories of newspapers, radio and television. 

The amendment achieves this by amending the definition of ‘set of media operations’ in new section 61B, which is inserted by the Bill. 

 

The effect of the amendment is that a set of media operation s consisting of a commercial television licence, a commercial radio licence and a newspaper can only be subject to an exemption certificate if the television and radio licences have the same metropolitan licence area.  (A ‘metropolitan licence area’ is defined in section 61B as a licence area containing the GPO of a mainland State capital.)

 

Amendment (5)

Amendment (5) is a technical amendment to new paragraph 61C(c), inserted by the Bill. 

 

Sub-paragraph 61C(c)(ii) specifies that a cross-media exemption certificate applies to an ‘associate’ of the holder.  Where the holder is a company, a consequence of the definition of ‘associate’ in subsection 6(1) of the BSA is that companies higher up the chain of control are not covered by sub-paragraph (ii). 

 

Amendment (5) inserts a new sub-paragraph 61C(c)(iia), which is essentially the converse of sub-paragraph 61C(c)(ii).  Sub-paragraph (iia) will cover the situation where the holder is an associate of the person.  This will ensure that a certificate will cover a company higher up the chain of control from the holder.

 

Amendment (6)

Item 4 of Schedule 2 of the Bill inserts new Division 5A (Exemptions from the cross-media rules) into Part 5 of the BSA. 

 

Amendment (6) inserts a new Subdivision BA into new Division 5A. 

 

New Subdivision BA - Disclosure of cross-media relationships

Subdivision BA establishes requirements for media entities covered by a cross-media exemption certificate to disclose the cross-media relationship to their audience or readership.  This was recommended by the Senate Environment, Communications Information Technology and the Arts Legislation Committee. 

 

Subdivision BA establishes two alternative methods of disclosure:

(a)     the default ‘business affairs’ model (see sections 61PA, 61PC and 61PE respectively for commercial television licensees, commercial radio licensees and newspaper publishers); and

(b)    an alternative ‘regular disclosure’ model which a radio licensee may choose to adopt by written notice to the ABA (see sections 61PB and 61PD). 

 

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

Scope

Section 61PA is the disclosure requirement for commercial television broadcasters.  Section 61PA will apply to any commercial television licensee covered by one or more active cross-media exemption certificates (see paragraphs 61PA(1)(a) and (b)).

 

The trigger for a disclosure under section 61PA is the broadcast by the licensee of matter that is wholly or partly about the business affairs of another media entity in the set covered by the certificate (see paragraph 61PA(1)(c)). 

‘Business affairs’ is defined in section 61PG, discussed below. 

Requirement to disclose

The business affairs disclosure requirement is that every time any material about the business affairs of a cross-controlled media entity is broadcast, the licensee must also broadcast a statement describing (in summary form or otherwise) the relationship between the licensee and the other media entity (subsections (2) and (3)):

·          the description of the relationship may be a simple statement to the effect that there is a cross-media relationship between the commercial television licensee and the other media entity. 

 

How statement is to be broadcast

A disclosure statement under subsection (2) or (3) must be broadcast in a way that will adequately bring it to the attention of a reasonable viewer of the trigger broadcast referred to in subsection (1) (see subsection (4)).

 

Subsection (5) will allow regulations to specify alternative requirements which will satisfy subsection (4). 

 

Period of grace

Subsection (6) gives the licensee a 14-day period of grace, beginning when the certificate cross-media exemption certificate becomes active, before the disclosure requirement comes into effect. 

 

Enforcement

Compliance with the disclosure requirement will be a condition of each licence (see Amendment (8) below).  Accordingly:

·          the ordinary mechanisms for enforcement of licence conditions will therefore apply (ie the notice, offence and licence suspension or cancellation provisions in Division 3 of Part 10 of the BSA); and

·          the complaint provisions in Division 1 of Part 11 of the BSA will apply. 

 

New section 61PB:      Choice of disclosure method - commercial radio broadcasting licensee

A commercial radio licensee may notify the ABA in writing that they will adopt the ‘regular disclosure’ method from a Sunday specified in the notice (see subsections 61PB (1) and (3)).  A notice must be given to the ABA at least 5 business days before the nominated Sunday (subsection (2)).  A business day is a weekday which is not a public holiday (subsection (7)). 

 

A notice continues in force until it is revoked (subsection (3)).  A licensee may give the ABA a written notice of revocation, with effect from the end of the Saturday nominated in the notice (subsection (4)).  A revocation notice must be given to the ABA at least 5 business days before the nominated Saturday (subsection (5)). 

 

If a notice is not in force under section 61PB, the ‘business affairs’ provisions will apply (see paragraph 61PC(1)(d), discussed below).  These notice provisions are necessary to ensure that compliance with the disclosure requirements can be adequately monitored by the ABA and enforced.  The ABA must make current adoption notices available for inspection on the Internet (subsection (6)). 

 

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

Section 61PC is the (default) business affairs disclosure method for commercial radio broadcasters, and corresponds to section 61PA above for commercial television broadcasters.

 

Section 61PC will apply to any commercial radio licensee covered by one or more active cross-media exemption certificates.  As the default method, section 61PC will apply unless the licensee has chosen (via a notice under subsection 61PB(1)) the regular disclosure method in section 61PD below (see paragraphs 61PC(1)(a), (b) and (d)). 

As for section 61PA, the trigger for a disclosure under section 61PC is the broadcast by the licensee of matter that is wholly or partly about the business affairs of another media entity in the set covered by the certificate (see paragraph 61PC(1)(c)). 

As for section 61PA, compliance with the disclosure requirement will be a condition of each licence (see Amendment (9) below).  The ordinary enforcement and complaint provisions will therefore apply, as outlined above in relation to section 61PA. 

 

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

Scope

Section 61PD is the (optional) regular disclosure method for commercial radio broadcasters.  Section 61PD will apply to any commercial radio licensee covered by one or more active cross-media exemption certificates.  However, as the optional method, section 61PD will only apply if the licensee has chosen this method via a notice under subsection 61PB(1) (see subsection 61PD(1)). 

 

Requirement to disclose cross-media relationship

As there is no trigger broadcast in the regular disclosure method, the obligation here is to regularly broadcast a statement describing (in summary form or otherwise) the relationship between the licensee and the other media entity (subsections (2) and (3)):

·          the description of the relationship may be a simple statement to the effect that there is a cross-media relationship between the commercial television licensee and the other media entity. 

 

The substance of the required statement is thus the same as for the standard disclosure provisions in sections 61PA, 61PC and 61PE. 

 

How statement is to be broadcast

A disclosure statement under subsection (2) or (3) must be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the prime-time audience of the service is aware of the cross-media relationship (see subsection (4)).

 

Subsection (5) provides that subsection (4) is satisfied if a licensee broadcasts the statement:

(a)   at least once each day during prime-time; and

(b)   in a way that will adequately bring it to the attention of a reasonable person who listens to the statement. 

 

Subsection (6) will allow regulations to specify alternative manner and timing requirements which will satisfy subsection (4).  The reference to timing here is intended to give sufficient flexibility so that regulations may specify, for example, how often a statement must be broadcast, and/or the period of the day during which the statement must be broadcast. 

 

Period of grace

As for other provisions, subsection (6) gives the licensee a 14-day period of grace before the disclosure requirement comes into effect. 

 

Enforcement

As for other provisions, compliance with the disclosure requirement will be a condition of each licence (see Amendment (9) below).  The ordinary enforcement and complaint provisions will therefore apply, as outlined above in relation to section 61PA. 

 

New section 61PE:      Disclosure of cross-media relationship by publisher of newspaper

Section 61PE is the disclosure requirement for newspaper publishers.  Section 61PE will apply to any newspaper covered by one or more active cross-media exemption certificates (see paragraphs 61PE(1)(a) and (b)). 

The trigger for a disclosure under section 61PE is the publication in a particular edition of the newspaper of material that is wholly or partly about the business affairs of another media entity in the set covered by the certificate (see paragraph 61PE(1)(d)). 

Section 61PE relies on the corporations power in the Constitution (paragraph 51(xx)) rather than the communications power (paragraph 51(v)).  Accordingly, the provision applies to a publisher of a newspaper which is a constitutional corporation (see paragraph 61PE(1)(c)).  A ‘constitutional corporation’ is a corporation to which paragraph 51(xx) of the Constitution applies (see Amendment (3) above), that is, a foreign corporation or an Australian trading or financial corporation. 

 

Requirement to disclose

The disclosure requirement is that every time any material about the business affairs of a cross-controlled media entity is published in the newspaper, a disclosure statement must be published in the same edition of the newspaper (subsections (2) and (3)). 

 

The content of the required statement is essentially the same as the statement required of broadcasters under section 61PA, 61PC or 61PD, ie a statement describing (in summary form or otherwise) the relationship between the newspaper’s publisher and the other media entity:

·          the description of the relationship may be a simple statement to the effect that there is a cross-media relationship between the newspaper’s publisher and the other media entity. 

 

How statement is to be published

A disclosure statement under subsection (2) or (3) must be published in a way that will adequately bring it to the attention of a reasonable reader of the trigger material referred to in subsection (1) (see subsection (4)). 

 

As for other provisions, subsection (5) will allow regulations to specify alternative requirements which will satisfy subsection (4). 

 

Period of grace

The same 14-day grace period applicable to broadcasters also applies to newspaper publishers (subsection (6)). 

 

Enforcement

As newspapers are not subject to the licensing regime in the BSA, enforcement of the disclosure requirement is by way of a criminal offence, rather than through a licence condition as for broadcasters (subsection (7)). 

 

The maximum penalty for a newspaper publisher is the same as that applicable to a commercial television licensee for the offence of breach of a licence condition, ie 2,000 penalty units or $220,000 (see existing subsection 139(1) of the BSA).  This reflects the significant influence that newspapers exert on public opinion. 

 

New section 61PF:     Exception - political communication

Section 61PF is designed to allow the disclosure requirements in new Subdivision BA to be read down in the event that any of the provisions were found by High Court to infringe the constitutional doctrine of implied freedom of political communication.  Section 61PF is a necessary safeguard because the extent of the doctrine is uncertain. 

 

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

The disclosure provisions for television and newspapers (sections 61PA and 61PE) and the default disclosure provisions for radio (section 61PC) are triggered when there is a broadcast or publication of material by a licensee or publisher that is wholly or partly about the business affairs of another media entity included in the set of media operations covered by the same exemption certificate as the licensee or publisher. 

 

Section 61PG elaborates the concept of material which is wholly or partly about the business affairs of a media entity.  It does not limit the ordinary meaning of the concept, but provides clarification in areas of uncertainty. 

 

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

Paragraph 61PG(1)(a) provides that material about business affairs includes material that, considering the nature of the material and the way in which it is presented, could reasonably be considered to be at least partly broadcast or published with the aim of:

·          promoting any material which is (or will be in the future) broadcast by the licensee or published in the newspaper; or

·          otherwise influencing the public to view, listen to or read any material which is (or will be in the future) broadcast by the licensee or published in the newspaper. 

 

Paragraph 61PG(1)(b) excludes the following categories of material:

(i)        a journalistic acknowledgment of a program or article as the source of particular information (eg an acknowledgment in a newspaper of a quotation from an interview broadcast on radio or television);

(ii)      advertising material, provided that it is clearly identifiable as such (see also subsection (7), which ensures that this provision does not affect the meaning of ‘advertising’ elsewhere in the BSA);

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

(iv)    a ‘program guide’ (as defined in subsection (2) below); and

(v)      material covered by an determination made by the Minister, by way of disallowable instrument (see subsections (4), (5) and (6) below). 

Program guide

A ‘program guide’ is a schedule of programs provided by television or radio broadcasters.  The schedule may be accompanied by brief factual information or comment about particular programs, but no particular service (ie no particular television or radio station or network) may be singled out for special promotion (subsections (2) and (3)). 

 

Exempt matter or exempt material

The Minister may make a written determination, by way of disallowable instrument, that specifies types of material which are exempt, that is excluded from the concept of material about business affairs (subsections (4), (5) and (6)). 

 

Amendment (7)

Amendment (7) amends section 204 of the BSA.  The amendment makes a decision by the ABA under subsection 49A(8) refusing to exempt a transaction from subsection 49A(6) (see Amendment (2) above) reviewable by the Administrative Appeals Tribunal. 

 

Amendment (8)

This amendment adds a new licence condition requiring that commercial television licensees comply with the disclosure requirements in section 61PB. 

 

Amendment (9)

This amendment adds a new licence condition requiring that commercial radio licensees comply with the requirements of the disclosure method applicable to them at a particular time (ie either section 61PC or 61PD).