Bills Digest No. 62 2003-04
Broadcasting Services Amendment (Media Ownership) Bill
2002 [No. 2]
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Broadcasting Services Amendment
(Media Ownership) Bill 2002 [No. 2]
Date Introduced:
5 November 2003
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Commencement:
Royal
Assent
To amend the
Broadcasting Services Act 1992 (the BSA) to remove controls on the
foreign ownership of Australian media and to allow the Australian
Broadcasting Authority (ABA) to issue exemption certificates in
respect of the cross-media ownership rules.
The Broadcasting Services Amendment (Media
Ownership) Bill 2002 was first introduced to the House of
Representatives on 21 March 2002.(1) It was referred to
the Senate Environment, Communications, Information Technology and
the Arts Legislation Committee, which reported on 18 June
2002.(2)
The Bill was subject to forty-eight amendments
in the Senate, six of which were rejected by the House of
Representatives. The Senate insisted upon these amendments and the
bill was laid aside by the House on 27 June 2003. The reintroduced
Bill contains those amendments agreed to by both chambers and is
thus substantially different to that originally presented in March
2002. The major changes relate to:
-
material of local significance (proposed new sections 43A and
43B)
-
the minimum number of media groups test (proposed new sections
61FA and 61FB), and
-
local sports programming (proposed new clause 5A of Schedule
6).
Readers should consult the Parliamentary
Library brief on Media Ownership Regulation(3) for more
detailed background on the issues.
Schedule 1 contains
amendments to the BSA to remove restrictions on the foreign
ownership of free-to-air and subscription television licences.
Item 1 repeals the objective of the Act 'to ensure
that Australians have effective control of the more influential
broadcasting services'. Item 3 repeals Division 4
of Part 5 of the Act, which imposes limits on foreign company
interests and directorships in commercial free-to-air television
licences. Item 10 repeals Divisions 3, 4 and 5 of
Part 7. These impose limits on the foreign ownership of
subscription television licences, describe the offences for
breaches of the limits, and provide for notification
procedures.
Item 1AA of Schedule 2
inserts a new section 43A which will ensure that the ABA requires
regional aggregated commercial television broadcasting licensees to
broadcast minimum levels of material of local significance,
including local news. Item 1AB of Schedule 2
inserts a new section 43B which will ensure that the ABA requires
metropolitan commercial broadcasting licensees to broadcast minimum
levels of material of local significance, including local news. The
ABA is to effect these requirements by including a condition in the
licences of the broadcasters. The condition is to define local area
and material of local significance .
Item 1A of Schedule 2 inserts
a new section 49A which prohibits contracts or arrangements for the
transfer of commercial radio broadcasting licences that include any
restrictions on the program format of the radio service.
Item 4 of Schedule 2 inserts
a new Division 5A to provide for exemptions to the cross-media
rules.
New section 61BA broadens the
definition of newspaper with regard to regional licence areas so
that it may include some newspapers that are not in the Associated
Newspaper Register maintained by the ABA.
New section 61C provides that
a person who has the benefit of a cross-media exemption certificate
is exempt from the cross media rules in section 60 or 61 so long as
the conditions attached to the certificate are satisfied. Exemption
certificates can only be granted in relation to a set of media
operations that involves only two of the three media types (i.e.
radio, television, newspapers) for a given licence area.
New section 61D allows the
ABA to issue cross-media exemption certificates to persons who
present applications in an approved form containing:
-
a set of
conditions to which the certificate is subject and an undertaking
to satisfy those conditions, and
-
organisational charts illustrating editorial decision-making
responsibilities.
The ABA may request additional information
from the applicant if it considers that such information is
required. An applicant who has been refused a cross-media
certificate by the ABA may apply to the Administrative Appeals
Tribunal for a review of the decision (see section 204 and
item 9).
New section 61E requires the
ABA to issue a cross-media exemption certificate to an applicant if
it considers that:
-
the conditions
included in the application are sufficiently detailed and that they
will provide an adequate means of continuously meeting the
objective of editorial separation for the set of media operations
to which the certificate refers, and
-
the minimum number of media groups test is satisfied.
New section 61F defines what
is necessary to meet the objective of editorial separation. This
consists of separate editorial decision making for each of the
entities that make up the set of media operations i.e. the
television station and/or radio station and/or newspaper that make
up the set. The objective is met if, and only if, each of the
entities have:
-
separate editorial policies
-
organisational charts consistent with separate editorial
decision-making, and
-
separate editorial news management, news compilation processes
and news gathering and news interpretation capabilities.
The sharing of resources and other forms of
cooperation between entities is permitted providing these
conditions are met.
New section 61FA sets out the
minimum number of media groups test. New section
61FB provides that some media operations in remote areas
may be exempt from the minimum number of media groups test.
New section 61FC establishes
the separately-controlled newspaper test which has the effect of
ensuring that the holder of an exemption certificate will not be
able to control more than one newspaper associated with a licence
area of a commercial radio broadcasting licence.
New section 61N requires the
ABA to maintain a Register of cross-media exemption certificates
(including the conditions to which each is subject) and to make the
Register available for inspection on the Internet. However, the ABA
is not required to publish material which could reasonably be
expected to prejudice substantially the commercial interests of a
person and the ABA is satisfied that such prejudice outweighs the
public interest in the publication of the material.
New section 61P requires
broadcasting licensees who are the subject of cross-media exemption
certificates to ensure that the objective of editorial separation
is continuously met in relation to their licence.
Comment: this provision operates in
conjunction with Items 13 and 16 of Schedule 2,
which make compliance with new section 61P a
standard condition of commercial television and radio licences.
Repeated breaches of these conditions can lead to loss of the
licence under the provisions of section 143 of the BSA.
New sections 61PA to 61PG
require the holders of cross-media exemption certificates to
disclose the cross-media relationship to their audience or
readership.
New sections 61Q to 61Y deal
with the local news and information requirements for regional
broadcasting licensees that have the benefit of a cross-media
exemption certificate.
New section 61R sets out the
minimum service requirements for local news, community service
announcements and emergency warnings.
Comment: the news requirements are
presented in two alternative formats section 61R(1)(a) and (b),
suitable for television and radio respectively (although the Bill
does not stipulate a particular format for each medium). The format
suitable for television requires five local news and weather
bulletins each week, to be broadcast in prime time (between 5.00 pm
to 10.30 pm) on different days, with each bulletin adequately
reflecting matters of local significance. The format suitable for
radio requires six or more bulletins each week, with at least five
being broadcast in prime time (between 6 am to 10 am) on different
days, with the bulletins (when considered together) adequately
reflecting matters of local significance.
New section 61S empowers the
ABA to define what is meant by the term 'local' with regard to
specified licence areas. Such definitions are disallowable
instruments.
New section 61U requires
regional licensees who are the subject of cross-media exemption
certificates to provide statements to the ABA containing:
-
the average weekly number of local news and weather bulletins,
and
-
the average weekly number of minutes of local news and weather
bulletins (both inside and outside of prime time)
for the year before the exemption certificate
became active (referred to as the 'benchmark year'). The ABA is
required to make these statements available for inspection on the
Internet.
If the ABA is satisfied that a licensee who
provided a statement under proposed section 61U has met the minimum
service standards for local news in the benchmark year then, under
new section 61V, it must require the licensee
to:
-
meet or exceed the minimum service standards for local news,
community service announcements and emergency warnings (as defined
in new section 61R)
-
ensure the number of, and time devoted to, local bulletins (both
inside and outside prime time) must not be any less than the level
provided in the benchmark year, and
-
provide to the ABA relevant records on their performance under
this section.
If the ABA is not satisfied that a licensee
who provided a statement under proposed section 61U has met the
minimum service standards for local news in the benchmark year
then, under new section 61W, it must require the
licensee to:
-
meet or exceed the minimum service standards for local news,
community service announcements and emergency warnings (as defined
in new section 61R), and
-
provide to the ABA relevant records on their performance under
this section.
Comment: new sections 61V and 61W are
designed to ensure that broadcasters who are already exceeding the
minimum service standards do not reduce their services to the
minimum required, while those who are not meeting the minimum
standard raise them to the level required.
The requirement to meet these specified levels
of local news content must be revoked by the ABA if licensee no
longer holds an active cross-media certificate (new section
61X).
Items 12 to 16 amend Schedule
2 of the BSA to make the requirements placed upon licensees in new
sections 61P, 61PA, 61PC, 61PD, 61U, 61V and 61W standard
conditions of a broadcasting licence. Failure to abide by these
conditions can ultimately lead to the cancellation of the licence
under the provisions of section 143 of the BSA.
A person who believes that a licensee has
breached the objective of editorial separation or the requirements
for minimum levels of local news and information may lodge a
complaint with the ABA. If the ABA decides that an investigation is
warranted it must make the results of its inquiries available on
the Internet (items 7 and 8). The ABA is not
required to publish material that would substantially prejudice the
commercial interests of a person unless the ABA believes that the
prejudice is outweighed by the public interest.
-
The Digest for this Bill can be obtained from:
http://www.aph.gov.au/library/pubs/bd/2001-02/02bd132.htm
-
The report can be obtained from:
http://www.aph.gov.au/senate/committee/ecita_ctte/media_ownership/report/report.pdf
-
Available at: http://www.aph.gov.au/library/intguide/SP/media_regulations.htm.
Kim Jackson
24 November 2003
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2003
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Published by the Department of the Parliamentary Library,
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