Chapter 2


Chapter 2

Background

2.1        On 14 March 2013, the minister representing the Minister for Broadband, Communications and the Digital Economy, the Hon Anthony Albanese, introduced the six bills into the House of Representatives.[1]

2.2        In introducing the bills the minister remarked that the package of bills represents 'the Australian Government's initial response to issues identified by the 2011 Independent Inquiry into the Media and Media Regulation and the 2012 Convergence Review'.[2]

2.3        The bills have yet to be introduced to the Senate. An outline of each bill is set out below.

Outline of the bills

Public Interest Media Advocate Bill 2013

2.4        The bill creates a Public Interest Media Advocate (PIMA), an independent statutory office that is to be responsible for administering the public interest test established in the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 and functions set out in the News Media (Self-regulation) Bill 2013.

2.5        The PIMA is to be appointed by the minister by written instrument and must have significant standing and substantial experience in the area of media, law, business, financial management, public administration or economics.[3]

2.6        Prior to appointing a person as the PIMA, the minister must consult with the Australian Communications and Media Authority (ACMA), the Australian Competition and Consumer Commission (ACCC) and such bodies as the minister considers appropriate.[4]

2.7        The PIMA is to hold office on a part-time basis for the period specified in the instrument of appointment, which must not exceed five years.[5]

2.8        The PIMA must give written notice to the minister of all pecuniary interests that could conflict with the proper performance of his or her functions.[6] The PIMA must also not engage in any paid employment that conflicts with the proper performance of his or her functions.[7]

2.9        The ACMA, ACCC or any department or agency of the Commonwealth government may assist the PIMA in the performance of his or her functions. The PIMA may also hold public hearings.[8]

2.10      The PIMA is not subject to direction by the minister or by the Commonwealth government in relation to the performance of his or her functions.[9] The PIMA must also prepare an annual report for the Parliament.[10]

2.11      The Governor-General may make regulations under this Act.[11]

Broadcasting Legislation Amendment (News Media Diversity) Bill 2013

2.12      The bill introduces a new Part 5A in the Broadcasting Services Act 1992 (BSA) which deals with news media diversity.[12] The proposed new Part introduces a public interest test for transactions between registered 'news media voices of national significance'.[13] Transactions that result in a person becoming the controller of a registered news media voice will be prohibited unless the Public Interest Media Advocate (PIMA) has approved the change of control. According to the Explanatory Memorandum to the bill:

The proposed public interest test for media mergers and acquisitions is designed to encourage diversity of ownership amongst Australia's largest and most influential news media voices.[14]

Registered news media voices

2.13      News media voices are defined in the bill as being a commercial television, subscription television or radio broadcasting service that provides news or current affairs programs. Print publications and online services that have news or current affairs content are also considered news media voices.[15]

2.14      The bill requires the Australian Communications and Media Authority (ACMA) to maintain an electronic register—the Register of News Media Voices—of news media voices that have an audience/readership in excess of 30 per cent of the average metropolitan commercial television evening news audience.[16] Entities that become registered news media voices must provide ACMA with the details of directors and those people in a position to exercise control over the entity.

Approval by the Public Interest Media Advocate

2.15      Any transaction that results in a person gaining control of two or more registered news media voices, or changes the mix of voices they control, must be approved by the PIMA and subjected to a public interest test.

2.16      A person seeking a change in control of a registered news media voice must make a written application to the PIMA.[17] Penalties apply to transactions that take place without approval from the PIMA.[18] The PIMA is also provided with information gathering powers.

2.17      In considering a change of control application, the PIMA must not approve the change unless it is satisfied that:

  • the change of control will not result in a substantial lessening of diversity of control of registered news media voices; or
  • the change of control is likely to result in a benefit to the public and that benefit outweighs the detriment to the public constituted by any lessening of diversity.[19]

2.18      Before making a decision on whether to approve an application, the PIMA must undertake public consultation about the proposed decision.[20] The PIMA must set out on the department's website a notice setting out the proposed decision and inviting persons to make submissions within 28 days of the notice being published.[21]

2.19      The PIMA must endeavour to make a decision on the application within 90 days after receipt of the application, or if a request has been made for the applicant to provide additional information, within 90 days of that information being received.[22]

2.20      If the PIMA approves or refuses an application, written notice and the reasons for the decision must be given to the applicant, and the ACMA, and displayed on the department's website.

Undertakings

2.21      The proposed legislation will also allow for parties to make and negotiate enforceable undertakings with the PIMA when considering applications for approval of transactions.[23]  The EM explains that:

Undertakings in the context of the public interest test provide a flexible alternative to refusing to approve a transaction when the PIMA believes that a transaction will lead to a substantial lessening of diversity. It is envisioned that undertakings will address diversity concerns whilst simultaneously permitting the realisation of merger benefits, such as organisational efficiencies or improvements in management.[24]

2.22      The PIMA would be authorised to accept a written undertaking that the person will take specified action, or refrain from taking specified action, in relation to news or current affairs content provided by a specified registered news media voice.[25]

2.23      According to the EM:

It is intended that undertakings could relate to structural measures to maintain diversity, such as undertakings to dispose of particular assets within particular periods. Undertakings could also extend to behavioural matters...[26]

2.24      The bills allows for variations to undertakings and withdrawal of undertakings to be made with the PIMA.[27] The PIMA, in considering whether to accept or refuse the variation or withdrawal, must consult with the ACMA and the public.[28]

News Media (Self-regulation) Bill 2013

2.25      The bill allows the PIMA to declare a specific body to be a 'news media self-regulation body'.[29] The minister's second reading speech on the bill outlined the rationale for the proposed self-regulation body:

Under the existing arrangements for print and online news publications, news media organisations operate within a predominantly self-regulatory framework.

Within this framework, the Australian Press Council is a self-regulatory body with principal responsibility for handling complaints about Australian newspapers, magazine, associated digital outlets and some online-only providers.

The Press Council is also responsible for developing, promoting and monitoring standards of good media practice.

The [b]ill will significantly strengthen current arrangements by providing incentives for news media organisations to participate in self-regulation that promotes the maintenance of standards relating to accuracy, fairness, privacy and other matters relating to the professional conduct of journalism.[30]

2.26      A news media organisation is defined as a corporation whose activities are wholly or principally media-related and consist of news or current affairs activities.[31] Small business operators within the meaning of the Privacy Act 1988 are excluded.[32]

2.27      The PIMA will be able to declare a body corporate a 'news media self-regulation body' if it meets certain criteria, such as it being a registered company limited by guarantee and has an effective news media self-regulation scheme applying standards to its news organisation members in relation to their news or current affairs activities.[33]

2.28      The PIMA must also have regard to the extent to which standards formulated under the body's self-regulation scheme deal with certain matters, including:

  • privacy, fairness and accuracy[34];
  • the extent to which the self-regulation standards reflect community standards[35];
  • the publishing of periodic reports relating to compliance with the standards[36];
  • the extent to which the scheme provides for remedial action to be taken[37];
  • the extent to which decision-making under the scheme is independent from media organisations and governments[38];
  • the extent to which the body corporate consulted the Privacy Commissioner in relation to the formation of the scheme[39]; and
  • any other matters the PIMA considers relevant.[40]

2.29      Before authorising a body corporate as a self-regulation scheme, the PIMA must also consult with the Privacy Commissioner and call for public submissions.[41]

2.30      The PIMA is also given the power to revoke the status of a news media self-regulation scheme if it fails to meet these requirements.[42] Consultation with the Privacy Commissioner and the public is required before the PIMA can revoke the status of the news media self-regulation scheme.[43]

2.31      The proposed legislation does 'not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication'.[44]

2.32      The minister is also required to conduct a review of the legislation within three years of its commencement.[45]

News Media (Self-regulation) (Consequential Amendments) Bill 2013

2.33      The bill amends subsection 7B(4) of the Privacy Act 1988 (Privacy Act) so that the subsection only applies to a news media organisation that is a member of a news media self-regulation body.[46]

2.34      Subsection 7B(4) of the Privacy Act currently provides that an act done or a practice engaged in by a media organisation is exempt, if it is done in the course of journalism and at a time when the organisation is publicly committed to published privacy standards.  According to the EM:

This means in effect that the activities of news media organisations that currently qualify for the exemption are not subject to the Privacy Act provisions that relate to the obtaining, keeping and disclosing of personal information.[47]

2.35      The bill would exclude any news media organisation that is not a member of a news media self-regulation body, as declared by the PIMA under the News Media (Self-regulation) Bill 2013, would no longer qualify for the exemption and would therefore be subject to the provisions of the Privacy Act.[48]

2.36      News media organisation has the same definition that is applied in the News Media (Self-regulation) Bill 2013.

Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013

2.37      The bill responds to matters raised in the government's two independent reviews into Australian media.[49] In particular the bill reflects the government's intention to not permit a sixth channel for commercial television broadcasting services. The bill also imposes an Australian content transmission quota on commercial television broadcasting licences and amends the charters of the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS).

Commercial television stations

2.38      The bill would repeal sections 35A and 35B of the Broadcasting Services Act 1992 and insert a new section to limit the number of commercial television broadcasting licences to three, ensuring that there is no new fourth commercial station.[50]

Australian quota

2.39      Commercial television broadcasting licensees are currently required under the Broadcasting Services (Australian Content) Standard 2005, which is determined by the ACMA, to ensure Australian programs constitute 55 per cent of all programming broadcast in a year between specified viewing hours.[51] The bill would elevate this obligation from a legislative instrument made by the ACMA into primary legislation.[52] The EM to the bill states that this change would 'increase regulatory certainty and provide greater transparency for the broadcasting and Australian content production sectors'.[53]

2.40      The bill would require each commercial television broadcasting licences to ensure that for each calendar year, the percentage of Australian programs transmitted on its core or primary channel during targeted viewing hours (between 6 a.m. and midnight) is not less than 55 per cent of all programming transmitted during those hours.[54]

2.41      The bill establishes definitions for 'Australian programs' and 'targeted viewing hours'.[55]

ABC and SBS

2.42      The bill proposes to amend the Special Broadcasting Service Act 1991 to require the minister to have regard to the need to ensure that the SBS includes at least one Indigenous non-executive director.[56]

2.43      The bill also proposes to make amendments to the charters of the ABC and SBS. The Charter of the ABC would be amended to insert a new paragraph 6(1)(ba), adding the provision of digital media services to the functions of the ABC.[57] The EM explains that this change is intended to 'reflect the range of services provided by the ABC, which now include online service in addition to the ABC's traditional television and radio services'.[58] The Charter of the SBS would be amended to include a similar reference to the provision of digital media services.[59]

2.44      The bill would also prohibit advertising on the ABC's digital media services and provide that the ABC or its prescribed companies are to be the only providers of Commonwealth-funded international broadcasting services.[60]

Television Licence Fees Amendment Bill 2013

2.45      The bill provides for the 50 per cent reduction in the licence fees paid by commercial television broadcasters, currently specified in regulations, to be made permanent in legislation on an ongoing basis.[61] The minister stated in his second reading speech that:

This reform is an important part of the Australian Government's initial response to the Convergence Review, and recognises the significant commercial pressures faced by Australia's commercial television industry.

The reduction in licence fees provided for in this [b]ill will enable commercial television broadcasters to continue to innovate and thrive in Australia's rapidly changing media landscape.[62]

2.46      The Television Licence Fees Act 1964 requires commercial television broadcasting licensees to pay to the Commonwealth a licence fee, by way of a tax, which is calculated by reference to their annual gross earnings from the broadcast of advertisements and other material.[63]

2.47      The new annual licence fee payable by commercial television broadcasters will be reduced to a maximum of 4.5 per cent of gross earnings.[64]

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