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Communications Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (REGIONAL AND SMALL PUBLISHERS INNOVATION FUND) BILL 2017

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Communications

Senator the Honourable Mitch Fifield)



COMMUNICATIONS LEGISLATION AMENDMENT (REGIONAL AND SMALL PUBLISHERS INNOVATION FUND) BILL 2017

OUTLINE

The Bill would implement a measure that forms part of the Government’s broader media reform package, significant elements of which were included in the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 and the Commercial Broadcasting (Tax) Act 2017. In particular, the Bill would establish the legislative framework for a grant funding scheme, the Regional and Small Publishers Innovation Fund, to be administered by the Australian Communications and Media Authority (ACMA).

The Bill would insert a new Part 14F into the Broadcasting Services Act 1992 which would:

·          provide that the ACMA may, on behalf of the Commonwealth, make a grant of financial assistance to a publisher of a newspaper, magazine or other periodical,  or a content service provider;

·          provide that the ACMA could only make a grant of financial assistance in the financial year commencing 1 July 2018, and in the following two financial years, with the overall amount of financial assistance not exceeding $50,100,000;

·          require the ACMA, before making a grant of financial assistance, to enter into an agreement with the recipient setting out the terms and conditions of the grant;

·          provide a power for the Minister to constitute a committee to advise the ACMA in relation to the exercise of the ACMA’s powers to make grants of financial assistance; and

·          require the ACMA to include particular information in its annual report relating to the making of grants.

The purpose of this measure is to assist regional and small publishers to transition, compete and innovate more successfully in a changing media environment. The grants will be able to be used by publishers for initiatives that support the continuation, development, growth and innovation of Australian civic journalism, including initiatives that explore and expand the journalism funding model. Civic journalism has the primary purpose of investigating and explaining public policy and issues of public interest or significance with the aim of engaging citizens in public debate and informing democratic decision making.

FINANCIAL IMPACT STATEMENT

The measure in this Bill is estimated to have the following impact on underlying cash:

 

 

2018-19

2019-20

2020-21

Expense ($m)

$16.7

$16.7

$16.7

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Communications Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017

 

This 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 .

Overview of the Bill

The Bill would amend the Broadcasting Services Act 1992 to insert a new Part 14F which would establish the legislative authority for the Australian Communications and Media Authority (ACMA) to make a grant of financial assistance to a publisher of a newspaper, magazine or other periodical,  or a content service provider. The grants would be limited to the financial year commencing 1 July 2018, and the following two financial years.

The Bill would require the ACMA to enter into an agreement with the proposed recipient, which includes the terms and conditions of the proposed grant, before the grant of financial assistance could be made. The Bill would also establish a core condition (see proposed section 205ZJ(4)) that is to be included in the agreement, requiring the recipient to spend the funding on activities that relate to the newspaper, magazine or periodical,  or the provision of a content service (whichever is relevant for the recipient).

The Bill would also allow the Minister to establish an advisory committee to provide advice to the ACMA in relation to the exercise of the ACMA’s powers to award a grant of financial assistance under this new Part 14F. The ACMA must have regard to any advice provided by the advisory committee in exercising its powers. However, this does not limit the matters the ACMA may have regard to when exercising its powers.

The Bill would also require the Chair of the ACMA to include in the annual report prepared by the ACMA, details of the name of each recipient of one or more grants of financial assistance, the total amount of those grants, and any advice given during the financial year to the ACMA by the advisory committee.

Human rights implications

This Bill engages the right to freedom of expression as contained in Article 19 of the International Covenant on Civil and Political Rights (the ICCPR). Article 19 recognises the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds using any media of choice.

The intention of the scheme is to assist regional and small publishers, and other entities, to transition, compete and innovate more successfully in a changing media environment. The grants are intended to be used by recipients for initiatives that support the continuation, development, growth and innovation of Australian civic journalism, including initiatives that explore and expand the journalism funding model. Civic journalism has the primary purpose of investigating and explaining public policy and issues of public interest or significance with the aim of engaging citizens in public debate and informing democratic decision making.

Under the legislative scheme which would be established by the Bill, grants of financial assistance would generally be made to constitutional corporations or companies, and the human rights contained in the seven core treaties would not be directly engaged. However, it is possible for a content service provider to be a natural person. Accordingly, to the extent a grant may be made to a natural person, the Bill would promote the right to freedom of expression. This is because such a grant would allow that person to continue to freely provide, or provide using different mediums, news journalism and other related media services. Provision of these services involves the free expression of ideas and information, and accordingly would promote the right to freedom of expression as contained in Article 19 of the ICCPR. 

Notwithstanding that a grant of financial assistance would generally only be made to constitutional corporations or companies, there will be flow on benefits to consumers of news, journalism, and other related media content services. The grants of financial assistance will result in more quality content, from more sources, from which consumers can seek and receive information and ideas. A better informed public also facilitates public debate and the free exchange of ideas and information. Accordingly, the indirect benefits to consumers of better news, journalism, and other related media content services also promotes the right to freedom of expression as contained in Article 19 of the ICCPR.   

Conclusion

The Bill is compatible with human rights because, to the extent that it engages the right to freedom of expression, it promotes the protection of that right.



NOTES ON CLAUSES

Clause 1 - Short title

Clause 1 provides that the Bill, when enacted, may be cited as the Communications Legislation Amendment (Regional and Small Publishers Innovation Fund) Act 2017 .

It is noted that proposed section 205ZN provides that the use of the expression “Regional and Small Publishers Innovation” part of the short title does not limit the powers conferred on the ACMA under proposed Part 14F.

Clause 2 - Commencement

Clause 2 provides for the commencement of the Bill. The whole of the Bill will commence on the day after the Bill receives the Royal Assent.

Clause 3 - Schedules

Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in that Schedule, and any other item in a Schedule has effect according to its terms. There is one Schedule to the Bill.



 

 

Schedule 1--AmendmentS

The Regional and Small Publishers Innovation Fund (the Fund) is a one off arrangement which will finance grants of up to $50.1 million over three years, commencing from the 2018-19 financial year. The intention of the grants scheme is to assist regional and small publishers, and other entities, to transition, compete and innovate more successfully in a changing media environment.

The new Part 14F of the Broadcasting Services Act 1992 (the BSA) would establish the legislative authority for the grants scheme, and empower the Australian Communications and Media Authority (ACMA) to administer grants of financial assistance on behalf of the Commonwealth, which may be made under this scheme.

Broadcasting Services Act 1992

Item 1 - After Part 14E

 

Part 14F—Grants

Item 1 would insert the new Part 14F into the BSA, which establishes the legislative framework empowering the ACMA to administer a grants program .

Proposed section 205ZG - Simplified outline of this Part

To assist readers, proposed section 205ZG would set out a simplified outline of the sections contained within the new Part 14F of the BSA. The simplified outline indicates that Part 14F contains provisions which:

·          provide that the ACMA may, on behalf of the Commonwealth, make a grant of financial assistance to a publisher of a newspaper, magazine or other periodical,  or a content service provider;

·          set out that the grant must be in respect of the financial year commencing 1 July 2018, or the following two financial years; and

·          provide that the Minister may constitute an advisory committee to advise the ACMA in administering grants made under proposed Part 14F.

Proposed section 205ZH - Grants

Proposed section 205ZH would empower the ACMA to make a grant of financial assistance, on behalf of the Commonwealth, to:

·          a constitutional corporation that publishes a newspaper, magazine or other periodical; or

·          a content service provider (within the meaning of Schedule 7 of the BSA).

Under the grant scheme, a recipient must be one of these two types of entities in order to be eligible to receive a grant of financial assistance from the ACMA. This limitation reflects that these entities are generally the ones which provide news, journalism and other media related content services.

The Government has announced that applicants for grants are to meet a number of eligibility criteria. One requirement will be meeting annual turnover thresholds of not less than $300,000 and not more than $30 million. Additional criteria includes:

·          a primary purpose test (of producing civic and public interest journalism with an Australian perspective);

·          an Australian residence test (being incorporated under Australian law and having central management in Australia);

·          an independence test (not affiliated with a political party, union, superannuation fund, financial institution, non-government organisation or policy lobby group);

·          a control test (being an entity that is majority controlled by Australian residents);

·          being a member of the Australian Press Council or having a robust and transparent complaints process; and

·          having in place editorial guidelines, a code of conduct or similar framework relating to the provision of quality journalism.

It is expected that the above eligibility criteria for the grants, will be reflected in the Grant Guidelines to be issued by the ACMA, and that the ACMA will apply these criteria in assessing applications for funding received for under the grant scheme. It is the intention that grants will be capped at a maximum of $1 million per year for any media group.   

As the grants scheme is a one off arrangement over a three year period, proposed section 205ZH provides that the grants of financial assistance will be provided in respect of:

·          the financial year commencing on 1 July 2018; or

·          the financial year commencing on 1 July 2019; or

·          the financial year commencing on 1 July 2020.

This section would also prevent the ACMA from making a grant of financial assistance to a recipient unless the ACMA has first entered into an agreement with the proposed recipient in accordance with proposed subsection 205ZJ(2). This is to ensure that the ACMA has first agreed with the recipient to appropriate terms and conditions in relation to the particular grant, for example, how the recipient is to spend the money. It will also mean that the appropriate core condition is included as part of the agreement before the grant is made. 

The total amount of financial assistance granted under the scheme must not exceed $50,100,000.

This section also specifies that payments under this section are to be made out of money appropriated by the Parliament by another Act, which will usually be an Annual Appropriation Act. This is common practice for bills that may have major financial implications and are introduced in the Senate ( Odgers’ Australian Senate Practice , 14 th edition, Ch 13).

Proposed section 205ZJ - Terms and conditions for grants

Proposed section 205ZJ provides that an agreement between the Commonwealth and the recipient is to set out the terms and conditions that apply to a grant. The section would also include a requirement that the appropriate core condition be included in the agreement.

Before a grant of financial assistance can be made by the ACMA under proposed section 205ZH, the terms and conditions on which the financial assistance is provided must be set out in a written agreement between the Commonwealth and the recipient. The ACMA is empowered to enter into agreements, on behalf of the Commonwealth, for this purpose.

The types of terms and conditions which could be specified in such an agreement is intended to be broad, subject to the relevant core condition. For example, terms and conditions may include that the funding be:

·          used to purchase a particular piece of technology or equipment; or

·          directed into a program or an initiative that is intended to promote civic journalism; or

·          used to develop an application for the delivery of news, and other media related content services; or

·          spent on training and upskilling of staff; or

·          directed to increasing revenue and readership. 

An agreement that is entered into for the purposes of a grant of financial assistance must contain a core condition that requires the recipient to spend the amount of the grant in connection with a matter specified in the agreement. This is a mechanism to ensure that the financial assistance is applied in accordance with the reason for the grant to the recipient.

If the grant is made to a constitutional corporation that publishes a newspaper, magazine or other periodical, the specified matter must concern the recipient’s activities as they relate to the newspaper, magazine or other periodical. In addition to this ensuring that the funding is spent in relation to the publication of a newspaper, it ensures that there is a sufficient link between how the funding is spent, and the corporations power contained in section 51(xx) of the Australian Constitution (Constitution).

.

If the grant is made to a content service provider, the specified matter must relate to the provision of a content service. In addition to ensuring that the funding is spent in relation to content services, it ensures that there is a sufficient link between how the funding is to be spent and the communications power contained in section 51(v) of the Constitution.     

Proposed section 205ZK - Advisory committee

Proposed section 205ZK would empower the Minister to constitute a committee (Committee) for the purpose of advising the ACMA in relation to the exercise of its powers under this new Part 14F. It is expected the Committee will give advice to the ACMA in relation to the assessment of applications for the grant, using their industry expertise.

The establishment, composition and appointment of members to the Committee will be at the Minister’s discretion. However, it is expected the Committee is to comprise, at a minimum, a representative appointed by the Minister from each of:

·          the Australian Press Council;

·          the Walkley Foundation; and

·          Country Press Australia.

The ACMA is required to have regard to any relevant advice that the Committee provides, when the ACMA is exercising its powers under this new Part 14F. This is because it is expected the Committee will be comprised of members who will have significant experience with matters in relation to news, journalism, and other media related content.    

The role of the Committee in providing advice does not limit the matters to which the ACMA may have regard. The ACMA may consider other things when considering an application, including obtaining additional information from applicants, advice from sources besides the Committee, and considering value for money.

The members of the Committee are to be remunerated as determined by the Remuneration Tribunal. If the Remuneration Tribunal has not made a determination, a committee member is to be paid an amount that is determined by the Minister in writing. Allowances for committee members are also to be determined by the Minister in writing, and it is expected that such allowances will cover expenses such as travel and accommodation. Determinations made by the Minister in relation to remuneration or allowances are legislative instruments.

The committee is dissolved at the end of 30 June 2021, after which no more grants can be issued by the ACMA under the new Part 14F.

Proposed section 205ZL - Annual report

Proposed section 205ZL would require the Chair of the ACMA to include information about the recipients of grants in the annual report that is provided in accordance with section 46 of the Public Governance, Performance and Accountability Act 2013 and given to the Minister each financial year.

For each financial year in which grants of financial assistance can be made, the ACMA must include the following information in its annual report:

·          the name of each recipient of one or more grants of financial assistance; and

·          the amount of each grant; and

·          the purpose for each grant; and

·          any advice given to the ACMA by the advisory committee.

This is to ensure transparency and accountability in relation to grants of financial assistance made by the ACMA, and in relation to the administration of the scheme.

Proposed section 205ZM - Short title of amending Act does not limit the ACMA’s powers

Proposed section 205ZM would make it clear that the use of the expression “Regional and Small Publishers Innovation” in the short title of the amending Act does not limit the powers conferred on the ACMA by this new Part 14F. This reflects that, notwithstanding the short title of the Bill, the ACMA can make grants to entities operating in both regional and metropolitan areas, and to publishers, broadcasters, and content service providers.