Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017



Download PDFDownload PDF

ISSN 1328-8091

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

BILLS DIGEST NO. 122, 2017-18 19 JUNE 2018

Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 3

Committee consideration .................................................... 4

Senate Standing Committee for Selection of Bills ................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 4

Statement of Compatibility with Human Rights .................... 4

Parliamentary Joint Committee on Human Rights .................. 4

Schedule 1—key issues and provisions ................................. 5

ACMA maintains the Register .................................................. 5

Relevant definitions ................................................................. 5

Information included on the Register ..................................... 6

Notification requirements ....................................................... 6

Human Rights Committee comments ................................... 7

Civil penalty provisions ............................................................ 7

Infringement notice provisions ............................................... 8

Scrutiny of Bills Committee comments ................................. 8

Other provisions .................................................................. 9

ACMA may request information .............................................. 9

Review ..................................................................................... 9

Ministerial direction .............................................................. 9

Schedule 2—key issues and provisions ............................... 10

Date introduced: 6 December 2017

House: The Senate

Portfolio: Communications and the Arts

Commencement: the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

June 2018.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 2

About community radio ........................................................ 10

Key provisions ........................................................................ 10

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 3

Purpose of the Bill The purpose of the Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 (the Bill) is to put in place two measures:

1. to establish the Register of Foreign Owners of Media Assets (the Register) to be overseen and administered by the Australian Communications and Media Authority (ACMA) and

2. to adjust the criteria against which licence applications and renewals are assessed to match community expectations of their local community radio services.

Structure of the Bill The Bill has two Schedules:

• Schedule 1 amends the Broadcasting Services Act 1992 by inserting a new Division into Part 5 which will establish the Register of Foreign Owners of Media Assets (the Register) and the rules that govern it. In addition there is a minor consequential amendment to the Australian Communications and Media Authority Act 2005 (ACMA Act)

• Schedule 2 amends Part 6 of the Broadcasting Services Act so that when determining whether to allocate a community radio broadcasting licence, ACMA must have regard to whether the service would provide material of local significance.

Background In May 2017, the Government announced a comprehensive package of reforms to ‘improve the sustainability of Australia’s free-to-air broadcasting sector, support the creation of high quality Australian content and modernise broadcasting and content regulation’. 1 The measures included:

• abolishing broadcasting licence fees and datacasting charges

• applying a fee for the spectrum that broadcasters use at a level more reflective of the current media landscape

• further restrictions on gambling advertising in live sporting events across all platforms

• amending the anti-siphoning scheme and list

• repealing the two out of three and 75% audience reach media ownership rules

• a broad ranging and comprehensive review of Australian and children’s content and

• funding to support the broadcasting of women’s and niche sports.2

Accordingly, the Government introduced Bills to enact the proposed reforms into the House of Representatives on 15 June 2017.3 Whilst the relevant Bills were passed by the House of Representatives without delay, they were the subject of considerable debate in the Senate; and the Government entered into a number of agreements with members of minor parties to ensure their passage.

In particular, in August 2017, Minister for Communications, Senator Mitch Fifield, announced that One Nation would support the package in return for the Government implementing and introducing legislation to give effect to:

• a public register of foreign-owned media assets

• the proposals of Senator Bridget McKenzie to enhance the ABC's focus on rural and regional Australia

• a range of enhanced transparency measures for the public broadcasters and

1. M Fifield (Minister for Communications), Major reforms to support Australian broadcasters, media release, 6 May 2017. 2. Ibid., Further information about the Budget announcement is in R Jolly, Budget Review 2017-18, Research paper series, 2016-17, Parliamentary Library, Canberra, 2017, pp. 49-51. 3. Specifically, the Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 and the Commercial Broadcasting (Tax) Bill 2017.

Parliament of Australia, ‘Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 homepage’, Australian Parliament website; Parliament of Australia, ‘Commercial Broadcasting (Tax) Bill 2017 homepage’, Australian Parliament website.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 4

• a community radio package.4

The Bill gives effect to two of the measures in the agreement between One Nation and the Government to enact the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017.5

According to One Nation Senator, Pauline Hanson:

Australians have seen too many iconic assets and too much land in the hands of foreign ownership. Most of the time we are treated like mushrooms and told by our leaders that it is in our best interests to privatise and sell to foreign investment because of the money it brings into the country. The truth is that successive governments have failed to balance the budget. One Nation will not stand by and continue to see this happen. If we can't stop it, at least we will know who is buying us up. We are asking for a register of foreign ownership interests in regulated media assets—be it associated newspapers, commercial television broadcasting licences or commercial radio broadcasting licences. Under the proposal, foreign persons, as defined in the Foreign Acquisitions and Takeovers Act 1975, would be required to disclose holdings of 2.5 per cent or higher of these regulated media assets. Any foreign bid of five per cent or more will still have to go to the Foreign Investment Review Board for approval.

6

Committee consideration Senate Standing Committee for Selection of Bills At its meeting of 7 February 2018, the Senate Standing Committee for Selection of Bills determined that the Bill would not be referred to Committee for inquiry and report.7

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for Scrutiny of Bills (Scrutiny of Bills Committee) commented on the Bill in its report of 7 February 2018.8 The relevant comments are canvassed under the heading ‘Key issues and provisions’ below.

Policy position of non-government parties/independents At the time of writing this Bills Digest no comment in relation to the Bill had been made by non-government parties or independents.

Position of major interest groups At the time of writing this Bills Digest there had been no comment from stakeholders in relation to the Bill.

Financial implications According to the Explanatory Memorandum, the measures in the Bill will have no financial impact.9

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.10

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (Human Rights Committee) commented on the Bill in its report of 6 February 2018.11 The relevant comments are canvassed under the heading ‘Key issues and provisions’ below.

4. M Fifield (Minister for Communications), One Nation support for media reform package, media release, 15 August 2017. 5. J McGrath (Assistant Minister to the Prime Minister), ‘Second reading speech: Broadcasting Legislation Amendment (Foreign Ownership and Community Radio) Bill 2017’, Senate, Debates, 6 December 2017, p. 9898. 6. P Hanson, ‘Second reading speech: Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017’, Senate, Debates,

17 September 2017, pp. 7110-11. 7. Senate Standing Committee for Selection of Bills, Report, 1, 2018, The Senate, Canberra, 8 December 2018. 8. Senate Standing Committee for Scrutiny of Bills, Scrutiny digest, 1, 2018, The Senate, 7 February 2018, p. 5. 9. Explanatory Memorandum, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, p. 3. 10. The Statement of Compatibility with Human Rights can be found at pages 18-22 of the Explanatory Memorandum to the Bill. 11. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 1, 6 February 2018, pp. 2-6.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 5

Schedule 1—key issues and provisions ACMA maintains the Register Item 5 of Schedule 1 to the Bill amends the Broadcasting Services Act to insert proposed Division 10A—Register of Foreign Owners of Media Assets into Part 5 of that Act. New Division 10A establishes the Register of Foreign Owners of Media Assets (the Register) and details the information which is to be recorded in the Register. ACMA is empowered to maintain the Register.12

The regulation impact statement notes that there is no framework which ‘explicitly collates and discloses the levels and sources of foreign investment in the Australian media’.13 The Government considered a number of options including whether to establish a Register, how that would be implemented and any costs that would likely be incurred by the establishment of a Register.

The Government’s preferred option, as reflected in the Bill, was to implement a register via the Broadcasting Services Act, to require disclosure of interests in regulated media companies in excess of two and a half per cent and for foreign persons to report annually or when their status changes. This framework is ‘expected to result in the highest likely net benefit’.14

Relevant definitions Proposed section 74B contains the definitions which are relevant to the operation of new Division 10A of Part 5 of the Broadcasting Services Act. In particular, an Australian media company is any of the following:

• a company that holds either a commercial television broadcasting licence or a commercial radio broadcasting licence15 or

• a company that is the publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence and is a constitutional corporation.

In addition proposed section 74C of the Broadcasting Services Act defines a foreign stakeholder of a company as a foreign person who has company interests in an Australian media company of 2.5% or more.16

The Bill also imports a number of definitions which are currently contained in the Foreign Acquisitions and Takeovers Act 1975 (FATA) into the Broadcasting Services Act. For instance, the meaning of the term foreign person is the same as in the FATA. Section 4 of the FATA provides that foreign person means any of the following:

• an individual not ordinarily resident in Australia

• a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest17

• a corporation in which two or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest

• the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest

• the trustee of a trust in which two or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest

• a foreign government or

12. Broadcasting Services Act, proposed subsection 74D(1). 13. Explanatory Memorandum, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, p. 6. There are existing frameworks which require certain interests to be disclosed, for example, the Foreign Acquisitions and Takeovers Act 1975 requires investments of more than five per cent by foreign persons in the Australian media industry to be assessed with regard to Australia’s national

interest. However, the details of the proposed or actual investments, or the foreign persons involved, are generally not publicly disclosed. 14. Explanatory Memorandum, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, p. 16. 15. Broadcasting Services Act, Part 4. 16. Broadcasting Services Act, section 6 provides that company interests, in relation to a person who has a shareholding interest, a voting

interest, a dividend interest or a winding-up interest in a company, means the percentage of that interest or, if the person has two or more of those interests, whichever of those interests has the greater or greatest percentage. 17. A person holds a ‘substantial interest’ in an entity if the person holds an interest of at least 20 per cent in the entity: FATA, section 4.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 6

• any other person, or any other person that meets the conditions, prescribed by the regulations.

Information included on the Register Under proposed section 74E of the Broadcasting Services Act the Register must set out for each Australian media company the following information about each foreign stakeholder:

• the name of the foreign stakeholder18

• the foreign stakeholder’s company interests in the company and the method used to determine those company interests19

• the reason why the foreign stakeholder is a foreign person20

• the country in which the foreign stakeholder who is an individual is ordinarily resident or, in the case of a corporation, the country in which the corporation was formed21

• the name of the trust of which the foreign stakeholder is a trustee and the country in which it was established22

• if the foreign stakeholder is a foreign government investor as defined in section 17 of the Foreign Acquisitions and Takeovers Regulation 2015, the identity of the foreign government, foreign country or the part of the foreign country, as the case may be.23

Notification requirements The Bill requires that the ACMA be notified of specified information in specified circumstances. To that end the Bill introduces the term designated information.24 In addition to the information which is to be published on the Register which is outlined above, designated information includes the person’s date of birth (if the person is an individual)25 and their address, email address (if any) and telephone number (if any).26

If a person who was not a foreign stakeholder in a particular Australian media company becomes a foreign stakeholder in the company at a particular time, the person must provide the ACMA in writing with:

• the person’s name27

• information about the foreign stakeholder that is to be included on the Register (as above)28

• the designated information relating to the person29 and

• such other information (if any) relating to the person as is specified in a legislative instrument that the ACMA may have made.30

Proposed sections 74H and 74J of the Broadcasting Services Act contain an equivalent requirement for end of financial year reporting and reporting within the initial disclosure period respectively.31 In addition, proposed section 74G of the Broadcasting Services Act requires a person who has ceased to be a foreign stakeholder in an Australian media company to notify the ACMA of the cessation and the circumstances that resulted in the cessation.

18. Broadcasting Services Act, proposed paragraph 74E(1)(a). 19. Broadcasting Services Act, proposed paragraphs 74E(1)(b) and (c). 20. Broadcasting Services Act, proposed paragraph 74E(1)(d). 21. Broadcasting Services Act, proposed paragraphs 74E(1)(e) and (f). 22. Broadcasting Services Act, proposed paragraph 74E(1)(g). 23. Broadcasting Services Act, proposed paragraphs 74E(1)(h)-(j). 24. Broadcasting Services Act, proposed section 74B. 25. Proposed subparagraph (a)(i) of the definition of designated information. 26. Proposed paragraph (g) of the definition of designated information. 27. Broadcasting Services Act, proposed paragraph 74F(1)(a). 28. Broadcasting Services Act, proposed paragraphs 74F(1)(b)-(e). 29. Broadcasting Services Act, proposed paragraph 74F(1)(f). 30. Broadcasting Services Act, proposed paragraph 74F(1)(f) and proposed subsection 74F(2). 31. Broadcasting Services Act, proposed section 74B defines the initial disclosure period as the period of six months beginning at the

commencement of new Division 10A.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 7

Human Rights Committee comments The Human Rights Committee noted that the Bill requires the provision of information by, and authorises the use and disclosure of certain information about individuals (including personal information) for inclusion on the Register.32 Of particular concern to the Human Rights Committee was:

• the broad power for the ACMA to specify by legislative instrument additional information that foreign stakeholders must provide and

• the lack of clarity about what safeguards are in place relating to the access, storage and disclosure of any personal or confidential information that is notified to the ACMA but not disclosed on the Register, such as a person's date of birth.

Accordingly, the Human Rights Committee sought the advice of the Minister as to whether the limitation on the right to privacy is proportionate to the stated objective of the measure.

The Minister’s response advised that the power to specify additional information by legislative instrument is a 'reserve power' that would 'be used in exceptional circumstances only, if at all', and that 'there is no intention that this reserve power would be used to collect personal information'.33 The Minister also expects ACMA to consult with the office of the Australian Information Commissioner before making any legislative instrument.34

The Minister’s response also provided information on safeguards for the information collected but not disclosed on the Register. The Minister noted that ACMA is bound by the Privacy Act 1988 and the Australian Privacy Principles (APPs). The Minister highlighted that the APPs:

… require the ACMA to take such steps as are reasonable in the circumstances to protect information from misuse, interference and loss, and from unauthorised access, modification or disclosure. In a practical sense, I expect that the ACMA will ensure that access to any personal or commercially sensitive information that it collects will only be accessible by those people performing the administration of the Register and on a strictly 'need to know' basis. I also expect that it will implement robust measures to prevent privacy breaches, which may include the establishment of firewalls, network segmentation, role-based access controls, physical security, and auditing and training of its personnel.

35

Based on the Minister’s advice, the Human Rights Committee concluded:

… subject to the content of any further legislative instrument, it is likely that the measures will be a proportionate limitation on the right to privacy. The Committee will consider the human rights compatibility of any legislative instrument prescribing additional information that can be collected when it is received. 36

Civil penalty provisions The required notification must be made in writing to the ACMA within 30 days.37

The Bill provides that the requirement to notify the ACMA is a civil penalty provision38 and that a person who fails to comply with the requirement commits a separate contravention in respect of each day during which the contravention continues.39 Importantly, section 205E of the Broadcasting Services Act creates an ancillary contravention where, for instance, a person attempts to contravene a civil penalty provision or a person aids, abets, counsels or procures a contravention of a civil penalty provision.40

32. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 1, op. cit., pp. 2-6. 33. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 3, 27 March 2018, p. 142. 34. Ibid.

35. Ibid.

36. Ibid., p. 143. 37. Broadcasting Services Act, proposed subsections 74F(1), 74G(1) and 74H(1). 38. Broadcasting Services Act, proposed subsections 74F(3), 74G(2), 74H(3) and 74J(3). 39. Broadcasting Services Act, proposed subsections 74F(4), 74G(3), 74H(4) and 74J(4). Note that a person is not required to notify the ACMA of

the required information if the information might tend to incriminate the person or expose the person to a penalty: see Broadcasting Services Act, proposed subsections 74F(6), 74G(5), 74H(6) and 74J(6). 40. Broadcasting Services Act, section 205E.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 8

The ACMA may apply to the Federal Court for a civil penalty order.41 Where the Court is satisfied that a person has contravened a civil penalty provision, it may order the person to pay the Commonwealth a pecuniary penalty. In determining the pecuniary penalty, the Federal Court must have regard to:

• the nature and extent of the contravention and the circumstances in which it took place

• the nature and extent of any loss or damage suffered as a result of the contravention and

• whether the person has previously been found by a court in proceedings under the Broadcasting Services Act to have engaged in any similar conduct.42

Item 8 of Schedule 1 to the Bill inserts proposed subsection 205F(5AA) into the Broadcasting Services Act so that the pecuniary penalty payable for a failure to notify the ACMA (as discussed above) must not be more than 300 penalty units in the case of a body corporate43 and 60 penalty units in the case of a person who is not a body corporate.44

Infringement notice provisions In the alternative, the requirement to notify the ACMA is a designated infringement notice provision.45 Part 14E of the Broadcasting Services Act provides that where an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision, the officer may, in the first instance, give the person a formal written warning that an infringement notice may be given.46

Otherwise, where the authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision, the officer may give the person an infringement notice relating to the contravention.47

Item 10 of Schedule 1 to the Bill inserts proposed subsections 205ZA(2) and (3) into the Broadcasting Services Act so that the penalty to be specified in an infringement notice in accordance with new Division 10A is equal to 60 penalty units in the case of a body corporate48 and 10 penalty units in the case of a person who is not a body corporate.49

Scrutiny of Bills Committee comments The Scrutiny of Bills Committee noted that item 1 of Schedule 1 of the Bill amends paragraph 53(2)(k) of the ACMA Act so that ACMA can delegate to a broad range of persons, including any ACMA staff member (who may be of any APS level), the power to issue notices under new Division 10A.50

The Scrutiny of Bills Committee stated that it:

… has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

The committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level. 51

41. Broadcasting Services Act, subsection 205G(1). 42. Broadcasting Services Act, subsection 205F(3). 43. Under section 4AA of the Crimes Act 1914, a penalty unit is equivalent to $210. This means the penalty must not exceed $63,000. 44. This means the penalty must not exceed $12,600. 45. Broadcasting Services Act, proposed subsections 74F(5), 74G(4), 74H(5) and 74J(5). 46. Broadcasting Services Act, section 205XA. 47. Broadcasting Services Act, subsection 205Y(1). 48. This means the penalty is $12,600. 49. This means the penalty is $2,100. 50. Senate Standing Committee for Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 9

The Scrutiny of Bills Committee requested further information from the Minister in relation to this matter and suggested that it may be appropriate to amend the Bill to ‘confine delegates to the holders of nominated offices or members of the Senior Executive Service’.52

In response the Minister advised:

Although the proposed delegation power would enable the ACMA to delegate the issuing of notices to officers below the Senior Executive Service (SES) level, this does not necessarily mean that the ACMA would exercise the power in such a way... Prior to the commencement of the Register, the ACMA will have in place procedures that will ensure that only those staff with appropriate qualifications and experience, and relevant training, are delegated key functions associated with the administration of the Register. I am satisfied that, in light of the above safeguards, that amendments to the proposed delegation powers are not necessary.

53

The Committee thanked the Minister for his response but noted that there was nothing in the Bill to restrict the delegation in the manner set out in the Minister’s response. The Committee maintained its view that it would be appropriate for the Bill to be amended to restrict the delegation of notice giving powers under new Division 10A of Part 5 of the Broadcasting Services Act to people with ‘appropriate qualifications, attributes or expertise’.54

Other provisions ACMA may request information In addition to placing the onus on a foreign stakeholder in an Australian media company to notify ACMA of the information described above, the Bill also empowers ACMA to give a foreign stakeholder a written notice requiring the foreign stakeholder, within a specified timeframe of not less than 14 days, to inform the ACMA of the foreign stakeholder’s company interests in the company and the method used to determine them. The ACMA may also request any other information (if any) relating to the foreign stakeholder which has been specified in a legislative instrument made by the ACMA.55

This is both a civil penalty provision and a designated infringement notice provision.56

Review The Bill requires the ACMA to conduct a review of the operation of new Division 10A as soon as practicable after the end of the three-year period that begins at the end of the initial disclosure period. The ACMA must prepare a report of its review and give it to the Minister. The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.57

Ministerial direction The Minister may, by legislative instrument, give the ACMA a direction about the performance of the functions, or the exercise of the powers, conferred on the ACMA by new Division 10A. In that case, the ACMA must comply with a direction.58 According to the Explanatory Memorandum to the Bill:

This is intended to be a reserve power. The Minister will not be able to direct the ACMA in respect of the statutory review the ACMA is required to undertake in accordance with section 74U. 59

51. Ibid., p. 6. 52. Ibid.

53. Senate Standing Committee for Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, p. 76. 54. Ibid., p. 77. 55. This means the penalty must not exceed $12,600. 55. Broadcasting Services Act, proposed subsections 74K(1)-(3). 56. Broadcasting Services Act, proposed subsections 74K(4) and (6). 57. Broadcasting Services Act, proposed section 74U. 58. Broadcasting Services Act, proposed section 74N. 59. Explanatory Memorandum, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, p. 41.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 10

Schedule 2—key issues and provisions About community radio In 1992 there was an expectation embedded in the provisions of the Broadcasting Services Act that radio broadcasting programming should cater for the particular needs and interests of the communities in which stations were situated and that local radio should deal with matters of local significance.60

The House of Representatives Standing Committee on Communications, Transport and the Arts inquiry into regional radio (the Local Voices inquiry) of 2001 highlighted the important contribution community radio made in delivering coverage of news and matters of local significance. However, it recognised that a combination of technological, economic and regulatory developments in the commercial broadcasting industry had led to a situation where many local radio voices had been replaced by an increasing number of networked, pre-recorded, automated and syndicated programs.61

Key provisions Currently, section 84 of the Broadcasting Services Act empowers the Minister to give directions to the ACMA to give priority to a particular community interest or interests, whether generally or in a particular licence area, in allocating community licences that are broadcasting services bands licences. Subsection 84(2) sets out those matters to which the ACMA must have regard in making a decision to grant a community broadcasting licence to an applicant or group of applicants.

Item 1 of Schedule 2 to the Bill inserts proposed paragraph 84(2)(ba) into the Broadcasting Services Act so that the ACMA must also have regard, in the case of a community radio broadcasting licence, to the extent to which the proposed service or services would provide material of local significance.

In addition, item 2 of Schedule 2 to the Bill specifies that material is of local significance if:

• it is hosted in the licence area of the proposed licence

• it is produced in the licence area of the proposed licence or

• it relates to the licence area of the proposed licence.

According to the Explanatory Memorandum to the Bill:

The new criterion in paragraph 84(2)(ba) will also be relevant to the ACMA’s decisions on the renewal of community radio broadcasting licences. Section 91(2A) enables the ACMA to refuse to renew a community licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee. [However] the new assessment criterion would not apply to applications for temporary community broadcasting licences …

62 [emphasis added]

60. RL Collins (Minister for Transport and Communications), ‘Second reading speech: Broadcasting Services Bill 1992’, Senate, Debates, 4 June 1992, p. 3599; paragraph 3(g) of the Broadcasting Services Act (as enacted) provided that one of the objects of the Act was to ‘encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance’.

61. Standing Committee on Communication, Transport and the Arts, Local voices: an inquiry into regional radio, House of Representatives, Canberra, 2001, p. 63. 62. Explanatory Memorandum, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, p. 45.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 11

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.