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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Broadcasting
Services Amendment (Media Ownership) Bill
2002
No. ,
2003
A Bill for an Act to
amend the Broadcasting Services Act 1992, and for other
purposes
Contents
Broadcasting Services Act
1992 3
Broadcasting Services Act
1992 5
A Bill for an Act to amend the Broadcasting Services
Act 1992, and for other purposes
The Parliament of Australia enacts:
This
Act may be cited as the Broadcasting Services Amendment (Media Ownership)
Act 2002.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Broadcasting Services Act
1992
1 Paragraph 3(1)(d)
Repeal the paragraph.
2 Subsection 6(1) (definition of foreign
person)
Repeal the definition.
3 Division 4 of
Part 5
Repeal the Division.
4 Paragraph 62(1)(b)
Omit “year; and”, substitute “year.”.
5 Paragraph 62(1)(c)
Repeal the paragraph.
6 Paragraphs 66(1)(a) and (b)
Omit “, 4”.
7 Paragraph 66(1)(d)
Omit “subsection 58(2) or”.
8 Subsections 66(1A) and (2)
Omit “, 4”.
9 Subsection 70(1)
Omit “, 4”.
10 Divisions 3, 4 and 5 of
Part 7
Repeal the Divisions.
11 Section 204 (table row relating to
subsection 58(2))
Repeal the row.
12 Section 204 (table row relating to
subsection 105(2))
Repeal the row.
13 Section 204 (table row relating to
subsection 105(3))
Repeal the row.
14 Subparagraph 7(1)(c)(iv) of
Schedule 2
Omit “Act; and”, substitute “Act;”.
15 Subparagraph 7(1)(c)(v) of
Schedule 2
Repeal the subparagraph.
16 Paragraph 10(1)(c) of
Schedule 2
Repeal the paragraph.
Broadcasting Services Act
1992
1 Subsection 6(1)
Insert:
cross-media exemption certificate means a certificate issued
under section 61D.
1AA After section 43
Insert:
(1) For the purposes of this section:
(a) a regional aggregated commercial television broadcasting
licence is a commercial television broadcasting licence for a licence
area set out in the table; and
(b) the applicable date for such a licence is the date set
out in the table opposite the licence area of the licence:
|
Licence area and applicable date |
||
|---|---|---|
|
Item |
Licence area |
Applicable date |
|
1 |
Northern New South Wales |
1 August 2003 |
|
2 |
Southern New South Wales |
1 August 2003 |
|
3 |
Regional Victoria |
1 August 2003 |
|
4 |
Eastern Victoria |
1 August 2003 |
|
5 |
Western Victoria |
1 August 2003 |
|
6 |
Regional Queensland |
1 August 2003 |
|
7 |
Tasmania |
1 July 2004 |
(2) The ABA must ensure that, at all times on and after the applicable
date for a regional aggregated commercial television broadcasting licence, there
is in force under section 43 a condition that has the effect of requiring
the licensee to broadcast to each local area, during such periods as are
specified in the condition, at least a minimum level of material of local
significance.
(3) The condition must define local area and material
of local significance for the purposes of the condition. The definition
of material of local significance must be broad enough to cover
news that relates directly to the local area concerned.
(4) To avoid doubt, this section does not:
(a) prevent the condition from setting out different requirements for
different types of material; or
(b) prevent the condition from specifying periods that recur (for example,
the hours between 7 am and 10 am Monday to Friday); or
(c) prevent the condition from setting out different requirements for
different periods; or
(d) create any obligations under subsection 43(2) that would not exist
apart from this section.
(5) Subsection 43(5) does not apply to the condition.
(6) This section does not, by implication, limit the powers conferred on
the ABA by section 43 to impose, vary or revoke other conditions.
1AB Before section 44
Insert:
(1) For the purposes of this section, a metropolitan commercial
television broadcasting licence is a commercial television broadcasting
licence that has a metropolitan licence area (as defined by
section 61B).
(2) The ABA must ensure that, at all times on and after 1 July 2004,
there is in force under section 43, for each metropolitan commercial
television broadcasting licence, a condition that has the effect of requiring
the licensee to broadcast to each local area, during such periods as are
specified in the condition, at least a minimum level of material of local
significance.
(3) The condition must define local area and material
of local significance for the purposes of the condition. The definition
of material of local significance must be broad enough to cover
news that relates directly to the local area concerned.
(4) To avoid doubt, this section does not:
(a) prevent the condition from setting out different requirements for
different types of material; or
(b) prevent the condition from specifying periods that recur (for example,
the hours between 7 am and 10 am Monday to Friday); or
(c) prevent the condition from setting out different requirements for
different periods; or
(d) create any obligations under subsection 43(2) that would not exist
apart from this section.
(5) Subsection 43(5) does not apply to the condition.
(6) This section does not, by implication, limit the powers conferred on
the ABA by section 43 to impose, vary or revoke other conditions.
1A After section 49
Insert:
Contracts or arrangements for transfer of licences
(1) A person must not enter into a contract or arrangement for the
transfer of a commercial radio broadcasting licence to a person (the
transferee) if:
(a) under the contract or arrangement, the transferee is subject to any
limitation or restriction in relation to the program format of the commercial
radio broadcasting service; or
(b) an effect or likely effect of the contract or arrangement is that the
transferee will be subject to any limitation or restriction in relation to the
program format of the commercial radio broadcasting service.
(2) Subsection (1) does not apply to a contract or arrangement of a
kind declared by the regulations to be exempt from
subsection (1).
Contracts or arrangements for transfer of control of
licences
(3) A person must not enter into a contract or arrangement for the
transfer of control of a commercial radio broadcasting licence if:
(a) under the contract or arrangement, the licensee is subject to any
limitation or restriction in relation to the program format of the commercial
radio broadcasting service; or
(b) an effect or likely effect of the contract or arrangement is that the
licensee will be subject to any limitation or restriction in relation to the
program format of the commercial radio broadcasting service.
(4) For the purposes of subsection (3), a contract or arrangement is
for the transfer of control of a commercial radio broadcasting licence if, and
only if, under the contract or arrangement, a person who was not in a position
to exercise control of the licence becomes in a position to exercise control of
the licence.
(5) Subsection (3) does not apply to a contract or arrangement of a
kind declared by the regulations to be exempt from
subsection (3).
Other contracts or arrangements
(6) A person must not enter into a contract or arrangement if:
(a) an effect or likely effect of the contract or arrangement is that a
commercial radio broadcasting licensee will be subject to any limitation or
restriction in relation to the program format of the commercial radio
broadcasting service; and
(b) either:
(i) a purpose of the contract or arrangement is to give a commercial
advantage or benefit to another commercial radio broadcasting licensee whose
licence has the same licence area as the licence of the first-mentioned
licensee; or
(ii) an effect or likely effect of the contract or arrangement is to give
a commercial advantage or benefit to another commercial radio broadcasting
licensee whose licence has the same licence area as the licence of the
first-mentioned licensee.
(7) Subsection (6) does not apply to a contract or arrangement
if:
(a) the contract or arrangement is covered by subsection (1) or (3);
or
(b) the contract or arrangement is of a kind declared by the regulations
to be exempt from subsection (6); or
(c) the contract or arrangement is exempt from subsection (6) because
of an order under subsection (8).
(8) The ABA may make a written order that, in the event that a particular
proposed contract or arrangement is entered into, the contract or arrangement is
exempt from subsection (6).
(9) In deciding whether to make an order under subsection (8), the
ABA must have regard to:
(a) such matters (if any) as are specified in the regulations;
and
(b) such other matters as the ABA considers relevant.
Overlapping licence areas
(10) If:
(a) more than 30% of the licence area population of a licence area is
attributable to an overlap area; or
(b) a licence area is entirely within another licence area;
paragraph (6)(b) applies to the 2 licence areas, but not between those
licence areas and other licence areas, as if the 2 licence areas were
one.
Prohibited contract or arrangement is void
(11) A contract or arrangement entered into in contravention of
subsection (1), (3) or (6) is void.
Civil penalties
(12) If the Federal Court is satisfied that a person has contravened
subsection (1), (3) or (6), the Court may order the person to pay to the
Commonwealth such pecuniary penalty, in respect of each contravention, as the
Court determines to be appropriate.
(13) In determining the pecuniary penalty, the Court must have regard to
all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of
the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar conduct.
(14) The pecuniary penalty payable under subsection (12) by a body
corporate is not to exceed $275,000 for each contravention.
(15) The pecuniary penalty payable under subsection (12) by a person
other than a body corporate is not to exceed $55,000 for each
contravention.
(16) The ABA may institute a proceeding in the Federal Court for recovery
on behalf of the Commonwealth of a pecuniary penalty referred to in
subsection (12).
(17) A proceeding under subsection (16) may be commenced within 6
years after the contravention.
2 At the end of section 60
Add:
Note: For the effect of cross-media exemption certificates,
see section 61C.
3 At the end of section 61
Add:
Note: For the effect of cross-media exemption certificates,
see section 61C.
4 After Division 5 of
Part 5
Insert:
The following is a simplified outline of this Division:
• This Division provides for exemptions from the cross-media rules
if:
(a) the ABA issues a cross-media exemption certificate that is subject to
conditions about meeting the objective of editorial separation; and
(b) the conditions of the certificate are satisfied.
• An applicant for a certificate must undertake that the conditions
of the certificate will be satisfied.
• If an exemption from the cross-media rules is in force in relation
to a commercial television or radio broadcasting licence:
(a) the licensee must meet the objective of editorial separation;
and
(b) if the licence is a regional commercial radio broadcasting
licence—the ABA must require the licensee to provide certain levels of
local news and information.
In this Division:
active, in relation to a cross-media exemption certificate,
has the meaning given by section 61J.
community service announcement means community information,
or community promotional material, for the broadcast of which the licensee does
not receive any consideration in cash or in kind.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
emergency service agency means:
(a) a police force or service; or
(b) a fire service; or
(c) a body that runs an emergency service specified in the
regulations.
metropolitan licence area means a licence area in which is
situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
minimum number of media groups test has the meaning given by
section 61FA.
news and weather bulletin means a regularly scheduled news
and weather bulletin.
objective of editorial separation, in relation to a set of
media operations, has the meaning given by section 61F.
prime-time hours means:
(a) in relation to a commercial television broadcasting licence—the
hours:
(i) beginning at 5 pm each day or, if another time is prescribed,
beginning at that prescribed time each day; and
(ii) ending at 10.30 pm on the same day or, if another time is prescribed,
ending at that prescribed time on the same day; or
(b) in relation to a commercial radio broadcasting licence—the
hours:
(i) beginning at 6 am each day or, if another time is prescribed,
beginning at that prescribed time each day; and
(ii) ending at 10 am on the same day or, if another time is prescribed,
ending at that prescribed time on the same day.
regional licence area means a licence area that is not a
metropolitan licence area.
separately-controlled newspaper test has the meaning given by
section 61FB.
set of media operations means:
(a) a commercial television broadcasting licence and a commercial radio
broadcasting licence that have the same licence area; or
(b) a commercial television broadcasting licence and a newspaper that is
associated with the licence area of the licence; or
(c) a commercial radio broadcasting licence and a newspaper that is
associated with the licence area of the licence.
unacceptable 3-way control situation, in relation to a
person, means the situation in which the person would, apart from this Division,
breach each of the following prohibitions:
(a) a prohibition in section 60 or 61 that relates directly or
indirectly to a set of media operations that consists of:
(i) a commercial television broadcasting licence; and
(ii) a commercial radio broadcasting licence;
that have the same licence area;
(b) a prohibition in section 60 or 61 that relates directly or
indirectly to a set of media operations that consists of:
(i) a commercial television broadcasting licence; and
(ii) a newspaper that is associated with the licence area of the
licence;
where the licence and the commercial radio broadcasting licence mentioned
in paragraph (a) have the same licence area;
(c) a prohibition in section 60 or 61 that relates directly or
indirectly to a set of media operations that consists of:
(i) a commercial radio broadcasting licence; and
(ii) a newspaper that is associated with the licence area of the
licence;
where the licence and the commercial television broadcasting licence
mentioned in paragraph (a) have the same licence area.
week means a 7-day period that begins on a Sunday.
(1) The definition of unacceptable 3-way control situation
in section 61B has effect, in relation to a regional licence area, as
if:
(a) each reference in the following provisions (the modified
provisions) to a newspaper included a reference to a local
paper:
(i) that definition;
(ii) the definition of associate in subsection
6(1);
(iii) section 7;
(iv) section 60;
(v) section 61;
(vi) the definition of set of media operations in
section 61B;
(vii) Schedule 1; and
(b) for the purposes of the modified provisions and paragraph (c), a
local paper were associated with the licence area of a commercial television
broadcasting licence or a commercial radio broadcasting licence if, and only if,
at least 50% of the circulation of the local paper is within the licence area of
the licence; and
(c) for the purposes of the modified provisions, if a person is (apart
from this paragraph) in a position to exercise control of a local paper (the
first local paper) associated with the licence area of a
commercial television broadcasting licence or a commercial radio broadcasting
licence—the first local paper were ignored unless:
(i) the circulation of the first local paper within that licence area is
at least 25% of the licence area population; or
(ii) the person is (apart from this paragraph) in a position to exercise
control of one or more other local papers associated with the licence area of
the licence, and the combined circulation of the first local paper and those
other local papers within that licence area is at least 25% of the licence area
population.
Definition
(2) In this section:
local paper means a newspaper (within the ordinary meaning of
that expression) that:
(a) is in the English language; and
(b) is published at least once a week; and
(c) is not entered in the Associated Newspaper Register;
but does not include a publication if less than 50% of its circulation is
by way of sale.
A person does not breach a prohibition in section 60 or 61 that
relates directly or indirectly to a set of media operations if:
(a) a cross-media exemption certificate is in force in relation to the set
of media operations; and
(b) the conditions of the certificate are satisfied; and
(ba) the person satisfies the separately-controlled newspaper test for the
first-mentioned set of media operations; and
(c) any of the following subparagraphs applies:
(i) the person is the holder of the certificate;
(ii) the person is an associate of the holder of the
certificate;
(iia) the holder of the certificate is an associate of the
person;
(iii) a company is the holder of the certificate, and the person is a
director of the company;
(iv) an associate of the holder of the certificate is a company, and the
person is a director of the company; and
(d) an unacceptable 3-way control situation does not exist in relation to
the person in connection with any licence or newspaper included in the set of
media operations.
Note: For the separately-controlled newspaper test, see
section 61FB.
(1) The ABA may issue a cross-media exemption certificate to a person, on
written application by the person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ABA;
and
(b) be accompanied by the application fee determined in writing by the
ABA.
(3) An application must:
(a) state that the certificate is to relate to a specified set of media
operations; and
(b) include a set of conditions to which the certificate is to be subject;
and
(c) be accompanied by proposed organisational charts in connection with
editorial decision-making responsibilities in relation to each of those media
operations; and
(d) state that the applicant undertakes that the conditions of the
certificate will be satisfied when the certificate is active.
(4) If the ABA considers that additional information is required before
the ABA can make a decision on an application, the ABA may, by written notice
given to the applicant within 30 days after receiving the application, request
the applicant to provide that information.
(5) If the ABA does not make a decision on the application within 60 days
after:
(a) receiving the application; or
(b) if the ABA has requested further information—receiving that
further information;
the ABA is taken, for the purpose of enabling an application to be made to
the Administrative Appeals Tribunal under section 204, to have made, at the
end of that 60-day period, a decision refusing the application.
(5A) The ABA may, by written notice given to the applicant, extend the
60-day period referred to in subsection (5), so long as:
(a) the extension is for a period of not more than 60 days; and
(b) the ABA has been unable to make a decision on the application within
that 60-day period because of the need to apply any or all of the
following:
(i) paragraph 61E(1)(aa);
(ii) paragraph 61E(1)(ab);
(iii) section 61FA; and
(c) the notice includes a statement explaining why the ABA has been unable
to make the decision on the application within that 60-day period.
(6) If the ABA decides to refuse the application, the ABA must give
written notice of the refusal, and the reasons for the refusal, to the
applicant.
(1) If an application is made to the ABA for the issue of a cross-media
exemption certificate in relation to a set of media operations, the ABA must
issue the certificate if:
(a) the applicant satisfies the ABA that the conditions included in the
application:
(i) are sufficiently specific and detailed; and
(ii) will, by the end of such period as the ABA considers appropriate, be
an adequate means of continuously meeting the objective of editorial separation
for the set of media operations; and
(aa) the set of media operations is not exempt from the minimum number of
media groups test, and the ABA is satisfied that the minimum number of media
groups test is satisfied for the set of media operations; and
(ab) the set of media operations is not exempt from the minimum number of
media groups test, and the ABA is satisfied that, if the certificate were to be
issued and become active, neither:
(i) the transactions, agreements and circumstances that resulted in the
certificate becoming active; nor
(ii) any related transactions, agreements and circumstances;
will result in the minimum number of media groups test not being
satisfied for the set of media operations; and
(b) the ABA is satisfied that the application is not frivolous or
vexatious; and
(c) the ABA is satisfied that, if the certificate were to be issued,
paragraph 61C(d) would not stop the certificate from becoming active.
Note 1: For the objective of editorial separation, see
section 61F.
Note 2: For the minimum number of media groups test, see
section 61FA.
Note 3: For exemptions from the minimum number of media
groups test, see section 61FB.
(2) The period mentioned in paragraph (1)(a) must not be longer than
60 days after the certificate becomes active.
(1) The objective of editorial separation for a particular set of media
operations is that the entities, or the parts of entities, that run the media
operations must maintain separate editorial decision-making responsibilities in
relation to each of those media operations.
(2) That objective is met if, and only if:
(a) the entities, or the parts of entities, that run the media operations
have separate editorial policies in relation to each of those media operations,
and those policies are:
(i) consistent with the existence of the separate editorial
decision-making responsibilities mentioned in subsection (1); and
(ii) made available for inspection on the Internet; and
(b) the entities, or the parts of entities, that run the media operations
have organisational charts in connection with editorial decision-making
responsibilities in relation to each of those media operations, and those charts
are:
(i) consistent with the existence of the separate editorial
decision-making responsibilities mentioned in subsection (1); and
(ii) made available for inspection on the Internet; and
(c) the entities, or the parts of entities, that run the media operations
have:
(i) separate editorial news management in relation to each of those media
operations; and
(ii) separate news compilation processes in relation to each of those
media operations; and
(iii) separate news gathering and news interpretation capabilities in
relation to each of those media operations;
and that management, and those processes and capabilities, are consistent
with the existence of the separate editorial decision-making responsibilities
mentioned in subsection (1).
(3) To avoid doubt, this section does not preclude the sharing of
resources, or other forms of co-operation, between the entities, or the parts of
entities, that run the media operations, so long as the entities, or parts of
entities, maintain:
(a) the separate editorial news management mentioned in
subsection (2); and
(b) the separate news compilation processes mentioned in
subsection (2); and
(c) the separate news gathering and news interpretation capabilities
mentioned in subsection (2).
(1) Use the table to work out whether the minimum number of media groups
test is satisfied for a set of media operations:
|
Minimum number of media groups test |
||
|---|---|---|
|
Item |
If the set of media operations is... |
the minimum number of media groups test is satisfied if... |
|
1 |
a commercial television broadcasting licence and a commercial radio
broadcasting licence |
there are at least the applicable number of points in the licence area of
the commercial radio broadcasting licence. |
|
2 |
a commercial television broadcasting licence and a newspaper |
there are at least the applicable number of points in each commercial radio
broadcasting licence area with which the newspaper is associated. |
|
3 |
a commercial radio broadcasting licence and a newspaper |
there are at least the applicable number of points in the licence area of
the commercial radio broadcasting licence. |
Applicable number of points
(2) For the purposes of the application of subsection (1) to a
commercial radio broadcasting licence area:
(a) if the licence area is an area in which is situated the General Post
Office of the capital city of:
(i) New South Wales; or
(ii) Victoria; or
(iii) Queensland; or
(iv) Western Australia; or
(v) South Australia; or
(vi) Tasmania;
the applicable number of points is 5; and
(b) in any other case—the applicable number of points
is 4.
Points
(3) Use the table to work out the number of points in the licence area of
a commercial radio broadcasting licence (the first radio licence
area):
|
Points |
||
|---|---|---|
|
Item |
This... |
is worth... |
|
1 |
a group of 2 or more media operations, where: (a) a person is in a position to exercise control of each of those media
operations; and (b) each of those media operations complies with the statutory control
rules; and (c) if a commercial television broadcasting licence is in the
group—more than 50% of the licence area population of the first radio
licence area is attributable to the licence area of the commercial television
broadcasting licence; and (d) if a commercial radio broadcasting licence is in the group—the
licence area of the commercial radio broadcasting licence is, or is the same as,
the first radio licence area; and (e) if a newspaper is in the group—the newspaper is associated with
the first radio licence area |
1 point. |
|
2 |
a commercial radio broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) the licence area of the licence is, or is the same as, the first radio
licence area; and (c) item 1 does not apply to the licence |
1 point. |
|
3 |
a newspaper, where: (a) the newspaper complies with the statutory control rules; and (b) the newspaper is associated with the first radio licence area;
and (c) item 1 does not apply to the newspaper |
1 point. |
|
4 |
a group of 2 or more commercial television broadcasting licences,
where: (a) each of those licences complies with the statutory control rules;
and (b) more than 50% of the licence area population of the first radio licence
area is attributable to the licence area of each of those commercial television
broadcasting licences; and (c) the commercial television broadcasting services to which those licences
relate pass the shared content test in relation to each other; and (d) item 1 does not apply to either of those commercial television
broadcasting licences |
1 point. |
|
5 |
a commercial television broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) more than 50% of the licence area population of the first radio licence
area is attributable to the licence area of the commercial television
broadcasting licence; and (c) the commercial television broadcasting service to which the licence
relates does not pass the shared content test in relation to any other
commercial television broadcasting service, where more than 50% of the licence
area population of the first radio licence area is attributable to the licence
area of the licence to which the other commercial television broadcasting
service relates; and (d) item 1 does not apply to the first-mentioned licence |
1 point. |
(4) If, apart from this subsection, all the media operations in a group of
media operations mentioned in an item of the table are also in one or more other
groups mentioned in an item of the table, then, for the purposes of
subsection (3), ignore the existence of:
(a) if one of the groups has the highest number of media
operations—the remaining group or groups; or
(b) if 2 or more of the groups have an equal highest number of media
operations:
(i) all but one of the groups that have an equal highest number of media
operations; and
(ii) the remaining group or groups; or
(c) if the groups have an equal number of media operations—all but
one of those groups.
Anti-avoidance
(5) If the ABA is satisfied that:
(a) a person (either alone or together with one or more other persons) has
entered into, begun to carry out, or carried out, a scheme; and
(b) the person did so for the sole or dominant purpose of ensuring that
the minimum number of media groups test is or will be satisfied for a set of
media operations; and
(c) apart from this subsection, the scheme results or will result in a
group of media operations being covered by an item of the table in
subsection (3);
the ABA may, by writing, determine that the existence of that group is to
be ignored for the purposes of subsection (3).
Statutory control rules
(6) For the purposes of this section, a media operation complies
with the statutory control rules if, and only if:
(a) no person is in breach of a prohibition in Division 2, 3 or 5
that relates directly or indirectly to the media operation; or
(b) a person is in breach of a prohibition in Division 2, 3 or 5 that
relates directly or indirectly to the media operation, but the ABA has approved
the breach under section 67.
Note: Section 67 is about approval of temporary
breaches.
Shared content test
(7) For the purposes of this section, a commercial television broadcasting
service passes the shared content test at a particular time in
relation to another commercial television broadcasting service if:
(a) the program content of at least 50% of the total number of hours of
programs broadcast by the first-mentioned service during daytime/evening hours
during the 6-month period ending at that time;
were the same as:
(b) the program content of at least 50% of the total number of hours of
programs broadcast by the other service during daytime/evening hours during the
6-month period ending at that time.
(8) For the purposes of subsection (7), ignore the
following:
(a) advertising or sponsorship material (whether or not of a commercial
kind);
(b) a promotion for a television program or a television broadcasting
service;
(c) community information material or community promotional
material;
(d) a news break or weather bulletin;
(e) any other similar material.
(9) For the purposes of subsection (7), ignore the
following:
(a) any material covered by paragraph 6(8)(b), (c) or (d) of
Schedule 4;
(b) a program covered by paragraph 37EA(1)(a) of
Schedule 4.
Overlapping licence areas
(10) Section 51 does not apply to this section.
Note: Section 51 is about overlapping licence
areas.
Definitions
(11) In this section:
daytime/evening hours means the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
media operation means:
(a) a commercial television broadcasting licence; or
(b) a commercial radio broadcasting licence; or
(c) a newspaper.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct, whether unilateral or otherwise.
Use the table to work out whether a set of media operations is exempt
from the minimum number of media groups test:
|
Exemptions from the minimum number of media groups test |
||
|---|---|---|
|
Item |
If the set of media operations is... |
the set is exempt from the minimum number of media groups test
if... |
|
1 |
a commercial television broadcasting licence and a commercial radio
broadcasting licence |
the commercial radio broadcasting licence area is: (a) Remote Commercial Radio Service North East Zone; or (b) Remote Commercial Radio Service Western Zone; or (c) Remote Commercial Radio Service Central Zone. |
(1) Use the table to work out whether a person satisfies the
separately-controlled newspaper test for a set of media operations:
|
Separately-controlled newspaper test |
||
|---|---|---|
|
Item |
If the set of media operations is... |
the separately-controlled newspaper test is satisfied
if... |
|
1 |
a commercial television broadcasting licence and a commercial radio
broadcasting licence |
the person is not in a position to exercise control of more than one
newspaper associated with the licence area of the commercial radio broadcasting
licence. |
|
2 |
a commercial television broadcasting licence and a newspaper |
for each commercial radio broadcasting licence area with which that
newspaper is associated, the person is not in a position to exercise control of
more than one newspaper associated with the commercial radio broadcasting
licence area. |
|
3 |
a commercial radio broadcasting licence and a newspaper |
the person is not in a position to exercise control of more than one
newspaper associated with the licence area of the commercial radio broadcasting
licence. |
(2) Section 51 does not apply to this section.
Note: Section 51 is about overlapping licence
areas.
(1) A cross-media exemption certificate is subject to the conditions set
out in the certificate.
(2) Those conditions must be the same as the conditions included in the
application for the certificate.
(3) This section has effect subject to section 61H (which deals with
variation of conditions).
(1) If a cross-media exemption certificate is held by a person, the ABA
may vary the conditions of the certificate, on written application by the
person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ABA;
and
(b) be accompanied by the application fee determined in writing by the
ABA.
(3) If an application is made for the variation of the conditions of a
cross-media exemption certificate in relation to a set of media operations, the
ABA must vary the certificate in accordance with the application if:
(a) the applicant satisfies the ABA that the varied conditions:
(i) are sufficiently specific and detailed; and
(ii) will, by the end of such period as the ABA considers appropriate, be
an adequate means of continuously meeting the objective of editorial separation
for the set of media operations; and
(b) the ABA is satisfied that the application is not frivolous or
vexatious.
Note: For the objective of editorial separation, see
section 61F.
(4) The period mentioned in paragraph (3)(a) must not be longer than
60 days after whichever is the later of the following times:
(a) the time when the certificate becomes active;
(b) the time when notice of the variation is given to the holder of the
certificate.
(5) If the ABA considers that additional information is required before
the ABA can make a decision on an application, the ABA may, by written notice
given to the applicant within 30 days after receiving the application, request
the applicant to provide that information.
(6) If the ABA does not make a decision on the application within 60 days
after:
(a) receiving the application; or
(b) if the ABA has requested further information—receiving that
further information;
the ABA is taken, for the purpose of enabling an application to be made to
the Administrative Appeals Tribunal under section 204, to have made, at the
end of that 60-day period, a decision refusing the application.
(7) If the ABA decides to refuse the application, the ABA must give
written notice of the refusal, and the reasons for the refusal, to the
applicant.
(1) If, at a particular time:
(a) a cross-media exemption certificate is in force in relation to a
commercial television broadcasting licence or a commercial radio broadcasting
licence; and
(b) as a result of the operation of section 61C in relation to the
certificate, a person is not in breach of a prohibition in section 60 or
61;
the certificate is active at that time.
(2) For the purposes of this section, assume that paragraph 61C(b) had not
been enacted.
Note: This means that the certificate will be
active whether or not the conditions of the certificate are
satisfied.
(1) The ABA must revoke a cross-media exemption certificate if:
(a) the certificate was active, but has ceased to be active; or
(b) the holder of the certificate requests the ABA to revoke the
certificate.
(2) If the ABA revokes a cross-media exemption certificate, the ABA must
give a copy of the instrument of revocation to the holder of the
certificate.
If:
(a) a cross-media exemption certificate relates to a commercial television
broadcasting licence or a commercial radio broadcasting licence; and
(b) the licence is renewed;
the certificate continues to apply to the renewed licence in the same way
that it applied to the first-mentioned licence.
(1) If:
(a) the ABA issues a cross-media exemption certificate that relates to a
commercial television broadcasting licence or a commercial radio broadcasting
licence; and
(b) the certificate becomes active;
the ABA must give a copy of the certificate to the licensee.
(2) If the ABA revokes a cross-media exemption certificate that relates to
a commercial television broadcasting licence or a commercial radio broadcasting
licence, the ABA must give a copy of the instrument of revocation to the
licensee.
(1) The ABA is to maintain a Register in which the ABA includes
particulars of cross-media exemption certificates that are active.
(2) The Register must include the conditions to which a cross-media
exemption certificate is subject.
(3) The Register may be maintained by electronic means.
(4) The Register is to be made available for inspection on the
Internet.
(5) However, the ABA is not required to make material available for
inspection on the Internet if the ABA is satisfied that:
(a) publication of the material could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication of the
material.
(1) If:
(a) one or more cross-media exemption certificates are active in relation
to a set of media operations; and
(b) a commercial television broadcasting licence or a commercial radio
broadcasting licence is included in the set;
the licensee must ensure that the objective of editorial separation is
continuously met for the set, to the extent to which the objective relates to
the licence.
Note 1: For the objective of editorial separation, see
section 61F.
Note 2: For enforcement of the requirement, see the licence
conditions set out in paragraphs 7(2)(d) and 8(2)(c) of
Schedule 2.
(2) Subsection (1) does not apply during the 60-day period
beginning:
(a) if there is only one cross-media exemption certificate—when the
certificate becomes active in relation to the licence; or
(b) if there are 2 or more cross-media exemption certificates—at the
earliest time when any of those certificates became active in relation to the
licence.
Scope
(1) This section applies if:
(a) one or more cross-media exemption certificates are active in relation
to a set of media operations; and
(b) a commercial television broadcasting licence is included in the set;
and
(c) the licensee broadcasts matter that is wholly or partly
about:
(i) the business affairs of a commercial radio broadcasting licensee whose
licence is included in the set; or
(ii) the business affairs of the publisher of a newspaper that is included
in the set.
Note: For business affairs, see
section 61PG.
Requirement to disclose
(2) If subparagraph (1)(c)(i) applies, the commercial television
broadcasting licensee must also broadcast a statement describing (whether in
summary form or otherwise) the relationship between the commercial television
broadcasting licensee and the commercial radio broadcasting licensee. For this
purpose, it is sufficient if the statement is to the effect that there is a
cross-media relationship between the commercial television broadcasting licensee
and the commercial radio broadcasting licensee.
(3) If subparagraph (1)(c)(ii) applies, the commercial television
broadcasting licensee must also broadcast a statement describing (whether in
summary form or otherwise) the relationship between the commercial television
broadcasting licensee and the publisher of the newspaper. For this purpose, it
is sufficient if the statement is to the effect that there is a cross-media
relationship between the commercial television broadcasting licensee and the
publisher of the newspaper.
How statement is to be broadcast
(4) A statement under subsection (2) or (3) must be broadcast in a
way that will adequately bring it to the attention of a reasonable person who
may have viewed the broadcast mentioned in paragraph (1)(c).
(5) The regulations may provide that subsection (4) is taken to have
been complied with if the statement is broadcast in the manner, and at the time,
specified in, or ascertained in accordance with, the regulations.
Period of grace
(6) Subsections (2) and (3) do not apply during the 14-day period
beginning:
(a) if there is only one cross-media exemption certificate—when the
certificate becomes active in relation to the commercial television broadcasting
licence; or
(b) if there are 2 or more cross-media exemption certificates—at the
earliest time when any of those certificates became active in relation to the
commercial television broadcasting licence.
Note: For enforcement of this section, see the licence
condition set out in paragraph 7(1)(pa) of Schedule 2.
Notice of choice may be given to the ABA
(1) A commercial radio broadcasting licensee may give the ABA a written
notice making a choice that section 61PD apply to the licensee with effect
from a Sunday specified in the notice.
Note: If a notice is not given, section 61PC applies to
the licensee.
When notice must be given
(2) A notice under subsection (1) must be given at least 5 business
days before the Sunday specified in the notice.
Duration of notice
(3) A notice under subsection (1):
(a) comes into force at the beginning of the Sunday specified in the
notice; and
(b) unless sooner revoked, remains in force indefinitely.
Revocation of notice
(4) If a notice under subsection (1) is in force in relation to a
commercial radio broadcasting licensee, the licensee may, by written notice
given to the ABA, revoke the subsection (1) notice with effect from the end
of a Saturday specified in the revocation notice.
(5) A notice under subsection (4) must be given at least 5 business
days before the Saturday specified in the notice.
Notices to be available on the Internet
(6) If a notice is in force under subsection (1), the ABA must make a
copy of the notice available on the Internet.
Definition
(7) In this section:
business day means a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
Scope
(1) This section applies if:
(a) one or more cross-media exemption certificates are active in relation
to a set of media operations; and
(b) a commercial radio broadcasting licence is included in the set;
and
(c) the licensee broadcasts matter that is wholly or partly
about:
(i) the business affairs of a commercial television broadcasting licensee
whose licence is included in the set; or
(ii) the business affairs of the publisher of a newspaper that is included
in the set; and
(d) a notice under subsection 61PB(1) is not in force in relation to the
commercial radio broadcasting licensee.
Note: For business affairs, see
section 61PG.
Requirement to disclose
(2) If subparagraph (1)(c)(i) applies, the commercial radio
broadcasting licensee must also broadcast a statement describing (whether in
summary form or otherwise) the relationship between the commercial radio
broadcasting licensee and the commercial television broadcasting licensee. For
this purpose, it is sufficient if the statement is to the effect that there is a
cross-media relationship between the commercial radio broadcasting licensee and
the commercial television broadcasting licensee.
(3) If subparagraph (1)(c)(ii) applies, the commercial radio
broadcasting licensee must also broadcast a statement describing (whether in
summary form or otherwise) the relationship between the commercial radio
broadcasting licensee and the publisher of the newspaper. For this purpose, it
is sufficient if the statement is to the effect that there is a cross-media
relationship between the commercial radio broadcasting licensee and the
publisher of the newspaper.
How statement is to be broadcast
(4) A statement under subsection (2) or (3) must be broadcast in a
way that will adequately bring it to the attention of a reasonable person who
may have listened to the broadcast mentioned in paragraph (1)(c).
(5) The regulations may provide that subsection (4) is taken to have
been complied with if the statement is broadcast in the manner, and at the time,
specified in, or ascertained in accordance with, the regulations.
Period of grace
(6) Subsections (2) and (3) do not apply during the 14-day period
beginning:
(a) if there is only one cross-media exemption certificate—when the
certificate becomes active in relation to the commercial radio broadcasting
licence; or
(b) if there are 2 or more cross-media exemption certificates—at the
earliest time when any of those certificates became active in relation to the
commercial radio broadcasting licence.
Note: For enforcement of this section, see the licence
condition set out in paragraph 8(1)(ia) of Schedule 2.
Scope
(1) This section applies if:
(a) one or more cross-media exemption certificates are active in relation
to a set of media operations; and
(b) a commercial radio broadcasting licence is included in the set;
and
(c) a notice under subsection 61PB(1) is in force in relation to the
commercial radio broadcasting licensee.
Requirement to disclose cross-media relationship
(2) If a commercial television broadcasting licence is included in the
set, the commercial radio broadcasting licensee must regularly broadcast a
statement describing (whether in summary form or otherwise) the relationship
between the commercial radio broadcasting licensee and the commercial television
broadcasting licensee. For this purpose, it is sufficient if the statement is to
the effect that there is a cross-media relationship between the commercial radio
broadcasting licensee and the commercial television broadcasting
licensee.
(3) If a newspaper is included in the set, the commercial radio
broadcasting licensee must regularly broadcast a statement describing (whether
in summary form or otherwise) the relationship between the commercial radio
broadcasting licensee and the publisher of the newspaper. For this purpose, it
is sufficient if the statement is to the effect that there is a cross-media
relationship between the commercial radio broadcasting licensee and the
publisher of the newspaper.
How statement is to be broadcast
(4) Statements under subsection (2) or (3) are to be broadcast in a
way, and with a frequency, that is reasonably likely to ensure that the audience
of the commercial radio broadcasting service during prime-time hours is aware
that:
(a) in the case of statements under subsection (2)—there is a
relationship between the commercial radio broadcasting licensee and the
commercial television broadcasting licensee; or
(b) in the case of statements under subsection (3)—there is a
relationship between the commercial radio broadcasting licensee and the
publisher of the newspaper.
(5) A commercial radio broadcasting licensee is taken to have complied
with subsection (4) if:
(a) the statement is broadcast at least once each day during prime-time
hours; and
(b) the statement is broadcast in a way that will adequately bring it to
the attention of a reasonable person who may have listened to the broadcast of
the statement.
(6) The regulations may provide that a commercial radio broadcasting
licensee is taken to have complied with subsection (4) if the statement is
broadcast in the manner, and at the times, ascertained in accordance with the
regulations.
Period of grace
(7) Subsections (2) and (3) do not apply during the 14-day period
beginning:
(a) if there is only one cross-media exemption certificate—when the
certificate becomes active in relation to the commercial radio broadcasting
licence; or
(b) if there are 2 or more cross-media exemption certificates—at the
earliest time when any of those certificates became active in relation to the
commercial radio broadcasting licence.
Note: For enforcement of this section, see the licence
condition set out in paragraph 8(1)(ia) of Schedule 2.
Scope
(1) This section applies if:
(a) one or more cross-media exemption certificates are active in relation
to a set of media operations; and
(b) a newspaper is included in the set; and
(c) the newspaper is published by a constitutional corporation;
and
(d) material published in a particular edition of the newspaper is wholly
or partly about:
(i) the business affairs of a commercial television broadcasting licensee
whose licence is included in the set; or
(ii) the business affairs of a commercial radio broadcasting licensee
whose licence is included in the set.
Note: For business affairs, see
section 61PG.
Requirement to disclose
(2) If subparagraph (1)(d)(i) applies, the publisher of the newspaper
must cause to be published in the same edition of the newspaper a statement
describing (whether in summary form or otherwise) the relationship between the
publisher and the commercial television broadcasting licensee. For this purpose,
it is sufficient if the statement is to the effect that there is a cross-media
relationship between the publisher and the commercial television broadcasting
licensee.
(3) If subparagraph (1)(d)(ii) applies, the publisher of the
newspaper must cause to be published in the same edition of the newspaper a
statement describing (whether in summary form or otherwise) the relationship
between the publisher and the commercial radio broadcasting licensee. For this
purpose, it is sufficient if the statement is to the effect that there is a
cross-media relationship between the publisher and the commercial radio
broadcasting licensee.
How statement is to be published
(4) A statement under subsection (2) or (3) must be published in a
way that will adequately bring it to the attention of a reasonable person who
may have read the material mentioned in paragraph (1)(d).
(5) The regulations may provide that subsection (4) is taken to have
been complied with if the statement is published in the manner specified in, or
ascertained in accordance with, the regulations.
Period of grace
(6) Subsections (2) and (3) do not apply during the 14-day period
beginning:
(a) if there is only one cross-media exemption certificate—when the
certificate becomes active in relation to the newspaper; or
(b) if there are 2 or more cross-media exemption certificates—at the
earliest time when any of those certificates became active in relation to the
newspaper.
Offence
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under this section;
and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty for a contravention of this subsection: 2,000 penalty
units.
Sections 61PA, 61PC, 61PD and 61PE do not apply to the extent (if
any) that they would infringe any constitutional doctrine of implied freedom of
political communication.
Matter or material about business affairs—what is included and
excluded
(1) A reference in this Subdivision to matter or
material that is wholly or partly about the business affairs
of a commercial television broadcasting licensee, a commercial radio
broadcasting licensee or a newspaper publisher:
(a) includes a reference to matter or material, where, having regard
to:
(i) the nature of the matter or material; and
(ii) the way in which the matter or material is presented;
it would be reasonable to conclude that the object, or one of the
objects, of the broadcast of the matter or the publication of the material, as
the case may be, was to:
(iii) promote; or
(iv) otherwise influence members of the public, or of a section of the
public, to view, to listen to, or to read;
matter broadcast, or to be broadcast, by the licensee, or material
published, or to be published, in the newspaper, as the case may be;
and
(b) does not include a reference to:
(i) a journalistic acknowledgment of a program or article as being the
source of particular information; or
(ii) advertising matter or advertising material, where a reasonable person
would be able to distinguish the advertising matter or advertising material from
other matter or material; or
(iii) a comment in a live broadcast, where the comment could not
reasonably have been anticipated; or
(iv) a program guide (see subsection (2)); or
(v) exempt matter or exempt material (see subsection (4)).
Program guide
(2) For the purposes of this section, a program guide is
matter or material that consists of no more than:
(a) a schedule of:
(i) the television programs provided by 2 or more television broadcasting
services; or
(ii) the radio programs provided by 2 or more radio broadcasting services;
or
(b) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment, about some or
all of the programs in the schedule, where each item is brief;
where the matter or material does not single out one of those services for
special promotion.
(3) For the purposes of subsection (2):
(a) a television broadcasting service is:
(i) a commercial broadcasting service that provides television programs;
or
(ii) a national broadcasting service that provides television programs;
and
(b) a radio broadcasting service is:
(i) a commercial broadcasting service that provides radio programs;
or
(ii) a national broadcasting service that provides radio
programs.
Exempt matter or exempt material
(4) The Minister may, by writing, determine that:
(a) matter included in a specified class of matter is exempt matter
for the purposes of this section; and
(b) material included in a specified class of material is exempt
material for the purposes of this section.
(5) A determination under subsection (4) has effect
accordingly.
(6) A determination under subsection (4) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Advertising matter
(7) This section does not, by implication, affect the meaning of the
expression advertising when used in any other provision of this
Act.
This Subdivision applies to a commercial radio broadcasting licence that
has a regional licence area.
Local news
(1) For the purposes of this Subdivision, a commercial radio broadcasting
licensee meets the minimum service standards for local news during
a particular week if, during that week, the licensee broadcasts:
(a) at least 5 local news and weather bulletins that meet the following
requirements:
(i) the bulletins are broadcast on different days during the
week;
(ii) the bulletins are broadcast during prime-time hours;
(iii) each bulletin adequately reflects matters of local significance;
or
(b) 6 or more local news and weather bulletins, where:
(i) at least 5 of the bulletins are broadcast on different days during the
week; and
(ii) at least 5 of the bulletins are broadcast during prime-time hours;
and
(iii) the bulletins, when considered together, adequately reflect matters
of local significance.
Local community service announcements
(2) For the purposes of this Subdivision, a commercial radio broadcasting
licensee meets the minimum service standards for local community service
announcements during a particular week if, during that week, the
licensee broadcasts one or more local community service announcements.
Emergency warnings
(3) For the purposes of this Subdivision, a commercial radio broadcasting
licensee meets the minimum service standards for emergency
warnings during a particular week if:
(a) on one or more occasions during the week, one or more emergency
service agencies asked the licensee to broadcast emergency warnings, and the
licensee broadcast those warnings as and when asked to do so by those emergency
service agencies; or
(b) there was no occasion during the week when an emergency service agency
asked the licensee to broadcast an emergency warning.
(1) The ABA may, by written instrument, define what is meant by the
expression local for the purposes of the application of:
(a) this Subdivision; or
(b) a specified provision of this Subdivision;
to a specified licence area.
(2) In making an instrument under subsection (1), the ABA must have
regard to:
(a) the areas where separate programming is provided; and
(b) such other matters (if any) as the ABA considers relevant.
Note: Program includes advertising or
sponsorship matter—see the definition of program in
subsection 6(1).
(3) An instrument under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
For the purposes of this Subdivision, the benchmark year,
in relation to a commercial radio broadcasting licence, is:
(a) if a single cross-media exemption certificate is in force in relation
to the licence—the 52-week period ending on the Saturday before the day on
which the application for the certificate was made; or
(b) if 2 or more cross-media exemption certificates are in force in
relation to the licence—the 52-week period ending on the Saturday before
the earliest day on which an application for any of those certificates was
made.
(1) This section applies if the ABA is satisfied that a particular
occasion is the first or only occasion on which a cross-media exemption
certificate becomes active in relation to a commercial radio broadcasting
licence.
(2) The ABA must, by written notice given to the licensee, require the
licensee to give the ABA a statement:
(a) specifying whether or not the licensee met the minimum service
standards for local news during each week in the benchmark year; and
(b) if the statement specifies that the licensee met those standards
during each of those weeks—specifying the licensee’s reasonable
estimate of each of the following numbers:
(i) the average weekly number of local news and weather bulletins
broadcast by the licensee during the benchmark year;
(ii) the average weekly number of minutes of local news and weather
bulletins broadcast by the licensee in prime-time hours during the benchmark
year;
(iii) the average weekly number of minutes of local news and weather
bulletins broadcast by the licensee outside prime-time hours during the
benchmark year.
Note: For enforcement of the requirement, see the licence
conditions set out in paragraphs 7(1)(q) and 8(1)(j) of
Schedule 2.
(3) The notice under subsection (2) must:
(a) require that the statement be given to the ABA within 28 days after
the notice is given; and
(b) identify the benchmark year.
(4) If the ABA is given a statement under this section, the ABA must make
the statement available for inspection on the Internet.
(5) In determining whether the licensee met the minimum service standards
for local news during each week in the benchmark year, the ABA may rely on a
statement given by the licensee under this section.
(6) For the purposes of the application of paragraph 61V(1)(e) to the
licensee, the applicable benchmark number is:
(a) the estimated number specified in the statement as mentioned in
subparagraph (2)(b)(i) of this section; or
(b) if the ABA is satisfied that the estimated number is significantly
inaccurate—the number that the ABA considers would have been specified if
the estimate were not significantly inaccurate.
(7) For the purposes of the application of paragraph 61V(1)(f) to the
licensee, the applicable benchmark number is:
(a) the estimated number specified in the statement as mentioned in
subparagraph (2)(b)(ii) of this section; or
(b) if the ABA is satisfied that the estimated number is significantly
inaccurate—the number that the ABA considers would have been specified if
the estimate were not significantly inaccurate.
(8) For the purposes of the application of paragraph 61V(1)(g) to the
licensee, the applicable benchmark number is:
(a) the estimated number specified in the statement as mentioned in
subparagraph (2)(b)(iii) of this section; or
(b) if the ABA is satisfied that the estimated number is significantly
inaccurate—the number that the ABA considers would have been specified if
the estimate were not significantly inaccurate.
(1) If:
(a) a cross-media exemption certificate is active in relation to a
commercial radio broadcasting licence; and
(b) the licensee has given a statement to the ABA under subsection 61U(2);
and
(c) the ABA is satisfied that the licensee met the minimum service
standards for local news during each week in the benchmark year;
the ABA must, by written notice given to the licensee, require the licensee
to:
(d) ensure that the minimum service standards for local news are met or
exceeded each week; and
(e) ensure that the number of local news and weather bulletins broadcast
by the licensee each week does not fall below the applicable benchmark number
worked out under subsection 61U(6); and
(f) ensure that the total number of minutes of local news and weather
bulletins broadcast by the licensee each week during prime-time hours does not
fall below the applicable benchmark number worked out under subsection 61U(7);
and
(g) ensure that the total number of minutes of local news and weather
bulletins broadcast by the licensee each week outside prime-time hours does not
fall below the applicable benchmark number worked out under subsection 61U(8);
and
(h) ensure that the minimum service standards for local community service
announcements are met or exceeded each week; and
(i) ensure that the minimum service standards for emergency warnings are
met each week; and
(j) keep such records as are specified in the notice in relation
to:
(i) local news and weather bulletins broadcast by the licensee;
and
(ii) local community service announcements broadcast by the licensee;
and
(iii) emergency warnings broadcast by the licensee at the request of
emergency service agencies; and
(k) retain those records for the period specified in the notice;
and
(l) make available to the ABA, on request, any such record that has been
retained by the licensee (whether or not the licensee is, at the time of the
request, under an obligation to retain the record); and
(m) give the ABA, at such intervals as are specified in the notice,
regular reports setting out such information in relation to:
(i) local news and weather bulletins broadcast by the licensee;
and
(ii) local community service announcements broadcast by the licensee;
and
(iii) emergency warnings broadcast by the licensee at the request of
emergency service agencies;
as is specified in the notice.
Note: For enforcement of the requirement, see the licence
conditions set out in paragraphs 7(2)(e) and 8(2)(d) of
Schedule 2.
(2) A requirement under subsection (1) applies to:
(a) the week beginning on the first Sunday after the day on which the
requirement was given; and
(b) each later week.
(1) If:
(a) a cross-media exemption certificate is active in relation to a
commercial radio broadcasting licence; and
(b) the licensee has given a statement to the ABA under subsection 61U(2);
and
(c) the ABA is not satisfied that the licensee met the minimum service
standards for local news during each week in the benchmark year;
the ABA must, by written notice given to the licensee, require the licensee
to:
(d) ensure that the minimum service standards for local news are met or
exceeded each week; and
(e) ensure that the minimum service standards for local community service
announcements are met or exceeded each week; and
(f) ensure that the minimum service standards for emergency warnings are
met each week; and
(g) keep such records as are specified in the notice in relation
to:
(i) local news and weather bulletins broadcast by the licensee;
and
(ii) local community service announcements broadcast by the licensee;
and
(iii) emergency warnings broadcast by the licensee at the request of
emergency service agencies; and
(h) retain those records for the period specified in the notice;
and
(i) make available to the ABA, on request, any such record that has been
retained by the licensee (whether or not the licensee is, at the time of the
request, under an obligation to retain the record); and
(j) give the ABA, at such intervals as are specified in the notice,
regular reports setting out such information in relation to:
(i) local news and weather bulletins broadcast by the licensee;
and
(ii) local community service announcements broadcast by the licensee;
and
(iii) emergency warnings broadcast by the licensee at the request of
emergency service agencies;
as is specified in the notice.
Note: For enforcement of the requirement, see the licence
conditions set out in paragraphs 7(2)(e) and 8(2)(d) of
Schedule 2.
(2) A requirement under subsection (1) applies to:
(a) the week beginning on the first Sunday after the end of the period of
6 months beginning on the date on which the occasion mentioned in subsection
61U(1) occurred; and
(b) each later week.
If:
(a) a requirement is in force under section 61V or 61W in relation to
a commercial radio broadcasting licence; and
(b) the ABA is satisfied that there is no active cross-media exemption
certificate in relation to the licence;
the ABA must, by written notice given to the licensee, revoke the
requirement.
Sections 61V and 61W do not, by implication, limit the powers
conferred on the ABA by any other provision of this Act.
5 After section 63
Insert:
(1) If:
(a) a person is in a position to exercise control of a commercial
television broadcasting licence or a commercial radio broadcasting licence;
and
(b) the person becomes aware that the person is in a position to exercise
control of a newspaper that is associated with the licence area of the
licence;
the person must, within 7 days after becoming so aware, notify the ABA in
writing of that event.
(2) The details are to be provided in a form approved in writing by the
ABA.
Penalty:
(a) if the breach relates to a commercial television broadcasting
licence—500 penalty units; or
(b) if the breach relates to a commercial radio broadcasting
licence—50 penalty units.
Note: The heading to section 63 is altered by adding at
the end “of licences”.
5A At the end of paragraph
67(4)(c)
Add “and”.
5B After paragraph 67(4)(c)
Insert:
(d) the breach would not result from the person or another person becoming
the successful applicant for the allocation of a commercial radio broadcasting
licence;
5C Subsection 67(4)
After “the applicant”, insert “for
approval”.
5D After subsection 67(5)
Insert:
(5A) In deciding the duration of the period to be specified in the notice,
the ABA:
(a) must have regard to the minimum period within which the person could
take action (other than surrendering a licence or causing a licence to be
surrendered) to ensure that the breach of the relevant provision ceases;
and
(b) must not have regard to any other matters.
5E Subsection 67(7)
Omit “2 years”, substitute “one year”.
5F Application of amendments—section 67
of the Broadcasting Services Act 1992
(1) Paragraph 67(4)(d) and subsection 67(5A) of the Broadcasting
Services Act 1992 apply in relation to applications made under subsection
67(1) of that Act after the commencement of this item.
(2) The amendment of subsection 67(7) of the Broadcasting Services Act
1992 made by this Schedule applies if the 45-day period referred to in that
subsection ends after the commencement of this item.
5FA After section 77
Insert:
Nothing in this Part is to be taken as specifically authorising any act
or thing for the purposes of subsection 51(1) of the Trade Practices Act
1974.
Note 1: Section 50 of the Trade Practices Act
1974 prohibits acquisitions that would have the effect, or be likely to have
the effect, of substantially lessening competition in a market. Subsection 51(1)
of that Act provides that section 50 does not apply to anything authorised
by an Act.
Note 2: The question of whether a cross-media acquisition
contravenes section 50 of the Trade Practices Act 1974 involves
identifying the relevant market or markets in which the acquisition would have
the effect, or be likely to have the effect, of substantially lessening
competition.
Note 3: The question of what is a relevant market is worked
out under the Trade Practices Act 1974, and there is nothing in that Act
that limits it to a market regulated by this Part.
5G At the end of Part 5
Add:
(1) Before 31 December 2006, the Minister must cause to be conducted
a review of this Part.
(2) The Minister must cause a report to be prepared of the review under
subsection (1).
(3) The Minister must cause copies of the report to be tabled before each
House of the Parliament within 15 sitting days of that House after the
completion of the preparation of the report and, in any case, no later than
30 June 2007.
6 Subparagraph 149(2)(b)(ii)
Omit “licence.”, substitute “licence;
or”.
7 At the end of subsection
149(2)
Add:
(c) in the case of a complaint that relates to an alleged breach
of:
(i) the condition referred to in paragraph 7(2)(d) of Schedule 2;
or
(ii) the condition referred to in paragraph 8(2)(c) or (d) of
Schedule 2;
the investigation is not warranted having regard to all the
circumstances.
8 At the end of
section 149
Add:
(4) If the investigation relates to an alleged breach of:
(a) the condition referred to in paragraph 7(2)(d) of Schedule 2;
or
(b) the condition referred to in paragraph 8(2)(c) or (d) of
Schedule 2;
the ABA must make the results of the investigation available for inspection
on the Internet.
(5) However, the ABA is not required to make the results of the
investigation available as mentioned in subsection (4) if the ABA is
satisfied that:
(a) publication of the results could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication of the
results.
8A Section 204 (after table item relating to
subsection 43(1))
Insert:
|
Refusal to make an order in relation to a proposed contract or
arrangement |
Subsection 49A(8) |
A person who proposes to enter into the contract or arrangement |
9 Section 204 (after table row relating to
subsection 59(4B))
Insert:
|
Refusal to grant a cross-media exemption certificate |
Section 61D |
The applicant |
|
Refusal to vary conditions of a cross-media exemption certificate |
Section 61H |
The applicant |
|
To give a notice imposing a requirement on a licensee |
Section 61V |
The licensee |
|
To give a notice imposing a requirement on a licensee |
Section 61W |
The licensee |
10 At the end of
section 207
Add:
(2) Subsection (1) does not apply to a fee determined under
section 61D or 61H.
(3) The amount of a fee determined under section 61D or 61H must not
be such as to amount to taxation.
11 Subparagraph 7(1)(p)(vii) of
Schedule 2
Omit “service.”, substitute “service;”.
12 At the end of subclause 7(1) of
Schedule 2
Add:
(pa) the licensee will comply with a requirement that is applicable to the
licensee under section 61PA.
13 At the end of subclause 7(2) of
Schedule 2
Add:
(d) the licensee will comply with a requirement that is applicable to the
licensee under section 61P.
14 Paragraph 8(1)(i) of
Schedule 2
Omit “and 6.”, substitute “and 6;”.
15 At the end of subclause 8(1) of
Schedule 2
Add:
(ia) the licensee will comply with a requirement that is applicable to the
licensee under section 61PC or 61PD;
(j) the licensee will comply with a requirement that is applicable to the
licensee under section 61U.
16 At the end of subclause 8(2) of
Schedule 2
Add:
(c) the licensee will comply with a requirement that is applicable to the
licensee under section 61P;
(d) the licensee will comply with a requirement that is applicable to the
licensee under section 61V or 61W.
17 Subclause 2(1) of
Schedule 6
Insert:
local sports news bulletin has the meaning given by
clause 5A.
18 Subclause 2(1) of
Schedule 6
Insert:
local sports program has the meaning given by
clause 5A.
19 After clause 5 of
Schedule 6
Insert:
Local sports program
(1) For the purposes of this Schedule, a local sports
program is a sports program the sole purpose of which is to
provide:
(a) coverage of one or more local sporting events; or
(b) analysis, commentary or discussion in relation to one or more local
sporting events;
or both, but does not include a local sports news bulletin.
Local sports news bulletin
(2) For the purposes of this Schedule, a local sports news
bulletin is a sports news bulletin the sole purpose of which is to
provide news about one or more local sporting events.
Local sporting event
(3) For the purposes of the application of this clause to a datacasting
licence, a sporting event is a local sporting event if, and only
if:
(a) the event takes place wholly within the relevant transmitter licence
area; or
(b) the event is a team event, and at least one competing team represents
a location within, or an organisation based within, the relevant transmitter
licence area.
(4) However, none of the following is a local sporting event:
(a) a sporting event that is, or is part of, an international sporting
competition;
(b) a sporting event that is, or is part of, a national sporting
competition;
(c) a sporting event that is, or is part of, the highest level competition
for a particular sport within a particular State or Territory;
(d) a sporting event specified in a notice under subsection
115(1).
Relevant transmitter licence area
(5) For the purposes of the application of this clause to a datacasting
licence, if a transmitter licence authorises the operation of a transmitter or
transmitters for transmitting the datacasting service concerned in a particular
area, that area is the relevant transmitter licence
area.
Definitions
(6) In this clause:
foreign location means a location in a foreign
country.
foreign organisation means an organisation based in a foreign
country.
foreign resident means an individual whose ordinary place of
residence is in a foreign country.
international sporting competition includes (but is not
limited to):
(a) a sporting competition (at any level) that is part of an international
circuit or series; or
(b) a sporting competition (at any level) that is an individual
competition, where 50% or more of the competitors are foreign residents;
or
(c) a sporting competition (at any level) that is a team competition,
where 50% or more of the competing teams represent a foreign location or foreign
organisation.
national sporting competition means:
(a) a sporting competition (at any level) that is part of an Australian
circuit or series; or
(b) a sporting competition (at any level) that:
(i) is an individual competition; and
(ii) operates as a single competition in Australia;
even if:
(iii) a small proportion of the competitors are foreign residents;
or
(iv) a small proportion of the events take place in a foreign country;
or
(c) a sporting competition (at any level) that:
(i) is a team competition; and
(ii) operates as a single competition in Australia;
even if:
(iii) a small proportion of the competing teams represent a foreign
location or foreign organisation; or
(iv) a small proportion of the events take place in a foreign
country.
20 After subclause 14(4) of
Schedule 6
Insert:
(4A) The condition set out in subclause (1) does not prevent the
licensee from transmitting a local sports program.
21 Subclause 14(5) of
Schedule 6
After “(2)”, insert “or (4A)”.
22 After subclause 16(3) of
Schedule 6
Insert:
(3A) The condition set out in subclause (1) does not prevent the
licensee from transmitting a local sports news bulletin.
23 Subclause 16(5) of
Schedule 6
Omit “(2) or (3)”, substitute “(2), (3) or
(3A)”.