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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