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Broadcasting
Legislation Amendment (News Media Diversity) Bill 2013
Introduced into the House of
Representatives on 14 March 2013
Portfolio: Broadband, Communications
and the Digital Economy
Summary of committee view
1.1
The committee
notes that there may be a number of ways in which excessive and undue media
concentration might be avoided consistently with the guarantee of freedom of
expression. Before forming a view on the compatibility of the bill with the
right to free expression, the committee seeks clarification of the standards to
be applied in granting or refusing approval for a change of control of certain
news media organisations.
Overview
1.2
This bill form
part of a package of measures[1]
which represent the government's response to two reviews conducted in 2011 and
2012 – the Convergence
Review and the Independent Inquiry into the Media and Media Regulation. This
bill responds to matters raised in the Convergence Review in relation to the
diversity of media control.
1.3
This bill seeks
to amend the Broadcasting Services Act 1992 to make it an offence[2]
(and subject to a civil penalty[3])
for a person to become the controller of certain news media organisations
unless the Public Interest Media Advocate[4]
(PIMA) has approved the change of control.[5]
1.4
In deciding whether
to approve a change of control, the PIMA must be satisfied that the change of
control:
- will not result
in a substantial lessening of diversity of control of registered news media
voices; or
- is likely to
result in a benefit to the public and this benefit outweighs the detriment to
the public caused by any lessening of diversity of control of registered news
media voices.[6]
1.5
It is intended
that this will apply to commercial television and radio, and subscription
television services, that provide news or current affairs programs, newspapers
or online services that have news or current affairs content or subscription
television platforms (e.g. Foxtel) that include such services. Services will
only be required to be registered if their audience or customer base exceeds 30
per cent of the average metropolitan commercial television evening news
audience.[7]
1.6
The PIMA, in
deciding whether to approve a transaction, can have regard to undertakings made
by the registered news media voice that it will take, or refrain from taking,
specified actions in relation to the news or current affairs content it
provides.[8]
1.7
The bill also
seeks to give the PIMA broad powers to make directions that a person dispose of
shares in a company if a change of control occurs without the PIMA's prior
approval (failure to comply being an offence and subject to a civil penalty)[9]
and gives the PIMA broad information gathering powers.[10]
1.8
The bill also
seeks to enable the Federal Court to grant injunctions in relation to
transactions that are not approved by the PIMA.[11]
Compatibility with human
rights
1.9
The bill is
accompanied by a self-contained statement of compatibility which identifies
that the bill engages the right to freedom of expression contained in
article 19 of the International Covenant on Civil and Political Rights
(ICCPR) and concludes that the bill is compatible with human rights.
Freedom of expression
1.10
The bill seeks
to restrict the rights of persons to enter into certain transactions to control
certain news media organisations. Those directly involved in such transactions
are likely to be corporations and may therefore not be able to directly invoke
the right to freedom of expression under article 19 of the ICCPR. However, the
explanatory memorandum notes that these measures ‘may limit the rights of
natural persons’ as well.[12]
1.11
The UN Human
Rights Committee has stated that article 19 of the ICCPR requires States
parties to ensure a diversity of media voices, including through measures to
prevent excessive concentration of media ownership:
The Committee
reiterates its observation in general comment No. 10 that ‘because of the
development of modern mass media, effective measures are necessary to prevent
such control of the media as would interfere with the right of everyone to
freedom of expression’. The State should not have monopoly control over the
media and should promote plurality of the media. Consequently, States parties
should take appropriate action, consistent with the Covenant, to prevent undue
media dominance or concentration by privately controlled media groups in
monopolistic situations that may be harmful to a diversity of sources and
views.[13]
1.12
The bill pursues
the goal of promoting 'plurality of the media', as explained in the statement
of compatibility:
The measures
in the Bill are designed to mitigate the risks associated with media
concentration. Diversity in the media contributes to a well-functioning
democratic society by providing citizens with a range of informed points of
view and preventing any one media owner from exercising too much influence over
public opinion or the political agenda.[14]
1.13
The UN Human
Rights Committee has also recognised that the existence of a free and diverse
media contributes to the enjoyment of the rights to participate in political
and public life as guaranteed by article 25 of the ICCPR.
1.14
There may be a
number of ways in which excessive and undue media concentration might be
avoided consistently with the guarantee of freedom of expression. The approach
currently adopted under Australian law is to limit ownership to a certain
percentage of the relevant media outlets. The approach proposed by the bill
involves the application of a substantive, rather than purely quantitative,
test. That test will be administered by a new regulatory body, the independent
Public Interest Media Advocate (PIMA).
1.15
The approval of
the PIMA will be required for a range of transactions involving the acquisition
of control of certain new media voices (‘control events’); such transactions
are otherwise prohibited under pain of criminal and civil sanctions. The PIMA
is barred from approving such transactions unless one of two conditions is
satisfied:
(a) the applicant
satisfies the PIMA that the relevant ‘control event’ will not result in a
substantial lessening of diversity of control of registered or listed news
media voices, or
(b) the relevant
control event is likely to result in a benefit to the public and the benefit
outweighs or would outweigh the detriment to the public constituted by any
lessening of diversity of control of registered or listed news media voices
that would result.
1.16
Before making a
decision to approve or to refuse to approve the transaction, the PIMA must
consult publicly.[15]
Restriction provided by ‘law’
1.17
Article 19(3)
permits the imposition of restrictions on the enjoyment of freedom of
expression under certain circumstances:
The exercise
of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For
respect of the rights or reputations of others;
(b) For the
protection of national security or of public order (ordre public), or of public
health or morals
1.18
Any limitation
must be provided by ‘law’. This means not only that there must be a domestic
rule adopted as part of the standard legislative process (or an accepted rule
of the common law), but that the law or rule in question must satisfy what is
known as the ‘quality of law’ test. This means that it must be sufficiently
precise so as to provide an indication to a person whose rights are to be
affected by the law of the circumstances under which, and the extent to which,
the person’s enjoyment of freedom of expression will be restricted. As the UN
Human Rights Committee has put it:
For the
purposes of paragraph 3 [of article 19], a norm, to be characterized as a
‘law’, must be formulated with sufficient precision to enable an individual to
regulate his or her conduct accordingly and it must be made accessible to the
public. A law may not confer unfettered discretion for the restriction of
freedom of expression on those charged with its execution. Laws must provide
sufficient guidance to those charged with their execution to enable them to
ascertain what sorts of expression are properly restricted and what sorts are
not.[16]
1.19
The standards
which the PIMA is to apply in the determination of an application for approval
of a transaction are broad and general, and may give rise to the issue of
whether they are sufficiently precise for the purposes of satisfying article
19(3) of the ICCPR.
1.20
It is not
clear to the committee that the standards set out in the bill on the basis of
which the PIMA will grant or refuse approval in relation to a transaction
provide the PIMA or persons affected with sufficient guidance or a precise
indication of how that power will be exercised.
1.21
The
committee intends to write to the Minister for Broadband, Communications and
the Digital Economy
to seek
clarification of the standards to be applied by the PIMA in determining
applications and whether it can be said that they are sufficiently precise so
that it can be said that they are provided by ‘law’ within the meaning of
article 19(3) of the ICCPR.
Right of access to court –
availability of a review of the decision of the PIMA not to approve a
transaction
1.22
The bill does
not provide for any review on the merits of the decision of the PIMA under
proposed new subsection 78BC(2) to refuse to approve a transaction. A decision
would presumably be subject to judicial review, but the extent to which a court
could revisit issues of fact or the overall merits is limited under such
procedures.
1.23
The decision of
the PIMA to refuse approval for a transaction would affect the right of a
natural person to enter into a contract with another person, as well as the
right to property. These rights are ones to which the right to a fair hearing
in civil matters applies.[17]
Accordingly, under this right an applicant (that is a natural person) is
entitled to have access to an independent and impartial court or tribunal with
the power to review all questions of fact and law that are critical to the
determination of the dispute: the availability of judicial review is not
necessarily be sufficient.
1.24
Neither the
statement of compatibility nor the explanatory memorandum explicitly address
the human rights issue. However, the explanatory memorandum notes:
The PIMA’s
decision is not subject to merits review. Merits review of decisions will not
be available due to the nature of the assessment process being undertaken by
the PIMA. The process, which will involve elements of both an inquiry with
substantial public consultation and potentially a negotiation, has been
designed to ensure transacting parties reasonably engage with the PIMA during
the assessment process. The Administrative Review Council Guidelines note that
processes that would be time-consuming and costly to repeat on review—as would
be the case with consideration of the proposed public interest test and any
negotiation of associated undertakings—may be exempted from including a merits
review process.[18]
1.25
While
restrictions on the right of access to a court under article 14(1) may be
permissible in certain circumstances, they must identify a legitimate purpose,
be narrowly drawn and not be disproportionate. The materials provided to the
committee do not address these issues.
1.26
The
committee is concerned that the absence of merits review of refusals by the
Public Interest Media Advocate to approve transactions of a natural person is
inconsistent with the guarantee of access to a court contained in article 14(1)
of the ICCPR. The committee intends to write to the Minister for Broadband,
Communications and the Digital Economy to ask whether the lack of merits review
can be justified as a reasonable and proportionate measure.
Offences
1.27
The bill creates
a number of offences and civil penalty provisions. These are intended to
reinforce the role of the PIMA who has the power to approve (or to refuse to
approve) proposed transfers of ownership that will bring about a change of
control of certain media services. Division 12 of the bill creates a number of
offences relating to failures to provide notifications of various developments
to the Australia Communications Media Authority (ACMA). Proposed new section
78ML states that these offences are ones of strict liability. The statement of
compatibility makes no reference to this, and the explanatory memorandum
provides no justification of the creation of strict liability offences. Strict
liability offences allow for the imposition of criminal liability without the
need to prove fault, and so engage and limit the right to be presumed innocent
until proven guilty under article 14(2) of the ICCPR.
1.28
The
committee intends to write to the Minister for Broadband, Communications and
the Digital Economy to request an explanation of why the creation of strict
liability offences under the proposed new Division 12 is necessary.
Right not to incriminate oneself
1.29
Proposed new
section 78FA provides the PIMA with the power to require a person to produce
information and documents where the PIMA believes on reasonable grounds that
the person has information or documents that are relevant to the operation of
Part 5A of the bill.
1.30
When this power
is combined with the power proposed to be conferred on the PIMA by clause 20 of
the Public Interest Media Advocate Bill 2013, potential issues of an
encroachment on the right not to incriminate oneself may arise. These matters
are discussed below as part of the committee’s analysis of the Public Interest
Media Advocate Bill 2013.[19]
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