Navigation: Previous Page | Contents | Next Page

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]

Navigation: Previous Page | Contents | Next Page