BROADCASTING SERVICES AMENDMENT (PUBLIC INTEREST TEST) BILL 2012

Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 i

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Broadcasting Services Act 1992

Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 1

A Bill for an Act to amend the Broadcasting

Services Act 1992, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Broadcasting Services Amendment

(Public Interest Test) Act 2012.

2 Commencement

This Act commences on the day this Act receives the Royal

Assent.

Amendments Schedule 1

Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 3

Schedule 1--Amendments

Broadcasting Services Act 1992

1 After Part 5

Insert:

Part 5A--Public interest test for control of media

operations of national significance

Division 1--Preliminary

78A Definitions

In this Part:

control: a person is in a position to exercise control of a media

operation if one or more of the following apply:

(a) the person is in a position to exercise control of the media

operation in accordance with Schedule 1;

(b) if the media operation is a newspaper the publisher of which

is a company, or a licence for which the licensee is a

company--the person:

(i) appoints a director to the board of directors of the

company; and

(ii) has company interests (within the meaning of

Schedule 1) in the company exceeding 10% at the time

of the appointment;

is a company, or a licence for which the licensee is a

company--the person acquires an interest in the voting

shares of the company where that acquisition is exempt from

the prohibition in subsection 606(1) or (2) of the

Corporations Act 2001 because of section 611 of that Act.

controller, in relation to a media operation, means a person who is

in a position to exercise control of the media operation.

media operation means:

Schedule 1 Amendments

4 Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012

(a) a commercial television broadcasting licence; or

(b) a subscription television broadcasting licence; or

(d)

newspaper.

media operation of national significance means a media operation

that has:

(a) control over the content it delivers; and

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

month; and

supplying content to that audience.

78B Newspapers--additional constitutional basis

(1) Without limiting its effect apart from this section, this Act also has

effect as provided by this section.

(2) This Act also has the effect it would have if each reference in this

Part to a newspaper were, by express provision, confined to a

newspaper where:

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

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

(i) in 2 or more States; or

(ii) in a Territory; or

(iii) in a foreign country.

Division 2--Notifying ACMA of position to exercise control

of media operation of national significance

78C Notifying ACMA of position to exercise control of media

operation of national significance

(1) If a person who was not in a position to exercise control of a media

operation of national significance becomes aware that the person

has become, on or after 28 June 2012, in a position to exercise

control of the media operation, the person must notify the ACMA,

in writing, of that position.

Amendments Schedule 1

Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 5

(2) The notice must be given:

(a) if the controller becomes aware before the commencement of

this section--within 14 days after that commencement; and

(b) if the controller becomes aware at or after the

commencement of this section--within 14 days after

becoming so aware.

Offence

(3) A person commits an offence if:

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

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

Penalty for contravention of this subsection: 500 penalty units.

Division 3--Determining whether position to exercise

control of media operation of national

significance is in public interest

78D ACMA to determine whether position to exercise control of

media operation of national significance is in public

interest

(1) This section applies if the ACMA becomes aware (whether or not

because of a notice given under section 78C) that a person who

was not in a position to exercise control of a media operation of

national significance has become, on or after 28 June 2012, in a

position to exercise control of the media operation.

ACMA to determine whether position to exercise control is in

public interest

(2) The ACMA must determine whether the controller's position to

exercise control of the media operation of national significance is

in the public interest.

Note:

Section 78E sets out matters to which the ACMA must have regard in

determining whether that position is in the public interest.

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

subsection (2).

Schedule 1 Amendments

6 Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012

ACMA to give remedial direction if position to exercise control not

in public interest

(4) If the ACMA is satisfied that the controller's position to exercise

control of the media operation is not in the public interest, the

ACMA must give a person such written directions as the ACMA

considers appropriate for the purpose of ensuring that the controller

is no longer in a position to exercise control of the media

operation.

(5) The ACMA's directions may include:

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

shares; or

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

(i)

shares;

(ii) interests in shares; or

due to a person in respect of shares, or interests in shares,

held by the person; or

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

(i)

shares;

(ii) interests in shares;

disregarded.

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

(7) A direction under subsection (4) must specify a period within

which the person must comply with the direction.

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

Information gathering powers

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

(a) the function of determining under this section whether a

controller's position to exercise control of a media operation

of national significance is in the public interest is taken to be

a broadcasting, content and datacasting function of the

ACMA; and

(b) any power under this Part related to that function is taken to

be power related to a broadcasting, content and datacasting

function of the ACMA.

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Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 7

78E Determining whether position to exercise control of media

operation of national significance is in public interest

(1) In determining for the purposes of section 78D whether a

controller's position to exercise control of a media operation of

national significance is in the public interest, the ACMA must have

regard to the following matters:

(a) whether that position will diminish the diversity of unique

owners providing general content services as well as news

and commentary at a national level;

(b) whether that position will diminish the range of content

services at a national level;

position, the media operation will not comply with its

obligations under this Act or any other law of the

Commonwealth;

(d) the likely impact of that position on editorial independence

for the media operation;

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

opinion;

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

presentation of news;

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

(2) The ACMA may publish guidelines relating to determining for the

purposes of section 78D whether a controller's position to exercise

control of a media operation of national significance is in the

public interest.

78F Extension of time for compliance with remedial direction

(1) A person who has been given a direction under subsection 78D(4)

may, within 3 months before the end of the period specified in the

direction but not less than one month before the end of that period,

apply in writing to the ACMA for an extension of that period.

(2) The ACMA may grant an extension if it is of the opinion that an

extension is appropriate in all the circumstances.

(3) If the ACMA considers that additional information is required

before the ACMA can make a decision on an application, the

Schedule 1 Amendments

8 Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012

ACMA may, by written notice given to the applicant within 30

days after receiving the application, request the applicant to

provide that information.

(4) The ACMA must not grant more than one extension, and the

period of any extension must not exceed 3 months.

(5) In deciding whether to grant an extension to a person, the ACMA

is to have regard to:

(a) the endeavours that the applicant made in attempting to

comply with the direction; and

(b) the difficulties experienced by the applicant in attempting to

comply with the direction.

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

(a) receiving the application; or

(b) if the ACMA has requested further information--receiving

that further information;

extend the period or refuse to extend the period originally specified

in the direction, the ACMA is to be taken to have extended that

period by 3 months.

(7) If the ACMA refuses to approve an application made under

subsection (1), the ACMA must give written notice of the refusal

to the applicant.

78G Breach of remedial direction--offence

(1) A person commits an offence if:

(a) the person has been given a direction under subsection

78D(4); and

(b) the person engages in conduct; and

direction.

Penalty: 20,000 penalty units.

(2) A person who contravenes subsection (1) commits a separate

offence in respect of each day (including a day of a conviction for

the offence or any later day) during which the contravention

continues.

Amendments Schedule 1

Broadcasting Services Amendment (Public Interest Test) Bill 2012 No. , 2012 9

78H Breach of remedial direction--civil penalty

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

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

(3) A person who contravenes subsection (1) commits a separate

contravention of that subsection in respect of each day (including a

day of the making of a relevant civil penalty order or any later day)

during which the contravention continues.

2 Subsection 204(1) (after the table item dealing with review

of a decision made under subsection 71(3))

Insert:

Refusal to extend

time for compliance

Section 78F

The applicant

3 Application of amendments

(1)

To avoid doubt, section 78C of the Broadcasting Services Act 1992, as

inserted by this Schedule, applies on and after the commencement of

this item, whether the person becomes aware of the person's position to

exercise control of the media operation before, at or after that

commencement.

(2)

To avoid doubt, section 78D of the Broadcasting Services Act 1992, as

inserted by this Schedule, applies on and after the commencement of

this item, whether the ACMA becomes aware of the person's position to

exercise control of the media operation before, at or after that

commencement.

Commonwealth of Australia Bills

BROADCASTING SERVICES AMENDMENT (PUBLIC INTEREST TEST) BILL 2012